RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 September
      DOCKET NUMBER:  AR20050000986


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Eric N. Andersen              |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his under honorable conditions
discharge (general) be upgraded to honorable.

2.  The applicant states, in effect, that at the time of his chapter he was
told he was being reduced in pay grade and released from active duty
without consideration of a first time offense or his excellent record up to
that point.  To this day he is still sorry for the chance not to continue
his career in the military.  He lived next to Fort Drum since he was born
and now, he would like to work there as a civilian.

3.  The applicant provided no documentary evidence to support his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice, which occurred
on
8 December 1986, the date of his separation from active duty.  The
application submitted in this case is dated 10 December 2004, but was not
received for processing until 20 January 2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the US Army Reserve on 4 October 1982.  On
4 November 1982, the applicant enlisted in the Regular Army for a period
of 4 years.  The applicant was assigned to Fort Sill, Oklahoma, to
undergo one station unit training.

4.  On 26 April 1984, the applicant extended his 4 year enlistment for 10
months, to a period of four years and 10 months, to satisfy service
remaining requirement for assignment to Germany.

5.  On 10 September 1984, the applicant arrived in Germany and was assigned
to Headquarters and Headquarters Battery, 1st Battalion, 18th Field
Artillery.
6.  The applicant was promoted to the rank and pay grade of Sergeant, E-5,
on 10 December 1985.  This would be the highest rank and pay grade the
applicant would hold while he served on active duty.

7.  On 6 September 1986, the applicant received nonjudicial punishment
under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) for wrongfully using a controlled substance between the
dates of 23 June and 23 July 1986.  The imposed punishment was a
reduction to the rank and pay grade of Specialist Four,
E-4; forfeiture of $441.00 for a period of 1 month; and to perform extra
duty for 45 days.

8.  The evidence shows that on 25 October 1986, the applicant's unit
commander notified him he was initiating action to discharge him from the
Army under the provisions of Army Regulation (AR) 635-200, chapter 14.  The
reason for the proposed action, the commander stated, was based on the
applicant having received a field-grade Article 15 for the use of drugs,
which in his opinion was a serious offense for any NCO (noncommissioned
officer).  The applicant was also notified that, "it is mandatory that a
chapter 14 be done on all NCO's who come up positive on urinalysis
testing."

9.  On 27 October 1986, the applicant acknowledged the letter of
notification.  He voluntarily waived consideration of his case by a board
of officers contingent upon his receiving a characterization of service or
description of service of no less favorable than general.

10.  The applicant requested representation by a military attorney and
opted to submit a statement in his own behalf.  The applicant's statement
was made in the form of submission of certificates/citations he received
over the period of the preceding 4 years as a result of his performance of
duty.  These certificates and citations included the following:

      a)  an undated certificate of achievement for outstanding service as
a member of a drill crew on 29 June 1983.

      b)  certificate of achievement for exceptionally meritorious service
while serving as a FDC (fire direction controller) radio teletype operator
for the period 15 August through 19 August 1983 while the battalion un
undergoing an ARTEP (Army Readiness Training Program), dated 30 September
1983.

      c)  certificate of achievement for meritorious service for the
first semi-annual fire direction center competition held on 2 December
1983, dated 15 December 1983.
      d)  an undated certificate of achievement for outstanding achievement
for the period 20 August 1984 through 19 November 1984 while serving as a
fire direction specialist at Grafenwoehr, Germany.

      e)  certificate of course completion for completing the Power
Generator Maintenance MOS Improvement Course, dated 21 December 1984.

      f) award certificate for the Army Achievement Medal for outstanding
achievement during the period 15 January 1985 to 1 February 1985 while
serving in field training exercise, Central Guardian, dated 28 February
1985.

      g)  award certificate for the Army Achievement Medal, first oak
leaf cluster, for outstanding achievement during the period 12 September
1985 to 3 October 1985 while serving as BCS Operator, dated 22 October
1985.

      h)  certificate for award of the Good Conduct Medal for exemplary
behavior, efficiency and fidelity for the period 4 November 1982 through
3 November 1985.

      i)  certificate of promotion, promoting the applicant to the rank and
pay grade Sergeant, E-5 with an effective date of 10 December 1985.

      j)  diploma for completion of the TST 111-3 Fire Support Course
conducted by the US Army Europe and Seventh Army during the period 13
January through 4 April 1986.

      k)  course completion certificate for completion of the forty-eight
hour Tacfire CEAR0150 course conducted by Central Texas College – Europe
Campus, dated 3 June 1986.

11.  In his acknowledgement, the applicant stated that he understood that
he might expect to encounter substantial prejudice in civilian life if a
general discharge under honorable conditions was issued to him.  He further
understood that as a result of issuance of a discharge under other than
honorable conditions he might be ineligible for many or all benefits as a
veteran under both federal and state laws.

12.  On 29 October 1986, the applicant's unit commander recommended that
the applicant be discharged from the Army under the provisions of AR 635-
200, chapter 14, and that he receive a general discharge.

13.  On 7 November 1986, the applicant's battalion commander recommended
that the applicant be dismissed from the Army under the provisions of AR
635-200, chapter 14, and that he be given a general discharge.

14.  On 20 November 1986, the applicant's brigade commander, a colonel,
approved the applicant's discharge under the provisions of AR 635-200,
chapter 14, by reason misconduct/abuse of illegal drugs and directed that
he be issued a general discharge with characterization of service as under
honorable conditions.

15.  The applicant was separated with an under honorable conditions,
general discharge in the rank and pay grade of Specialist Four, E-4, on 8
December 1986, under the provisions of AR 635-200, chapter 14.  On the date
of his discharge, the applicant had completed 4 years, 1 month, and 5 days
of active military service.

16.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within the 15-year
statute of limitation of that board.

17.  AR 635-200 sets forth the basic authority for the separation of
enlisted personnel.  Chapter 14, then in effect, established policy and
prescribed procedures for separating personnel for misconduct because of
minor disciplinary infractions, a pattern of misconduct, commission of a
serious offense, conviction by civil authorities, desertion, and absence
without leave.

18.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

2.  The evidence of record shows that when the applicant was notified of
his commander's intention to separate him from the Army under the
provisions of AR 635-200, chapter 14, the applicant acknowledged the letter
of notification and voluntarily waived consideration of his case by a board
of officers contingent upon his receiving a characterization of service or
description of service of no less favorable than general.

3.  The applicant's contention that no consideration was given, that this
was a first offense or to his excellent record up to that point is not
supported by the evidence.  The evidence shows that those certificates that
the applicant attached to the separation action, which he intended to speak
in his behalf, and which are a matter of record, were reviewed and
considered by the chain of command.

4.  When the applicant chose to use an illegal substance and this use of
illegal drugs was detected, command had no option, under applicable
regulations in effect at the time, but to initiate action to dismiss him
from the Army.  Because of the negative impact the use of illegal drugs by
a noncommissioned officer could have on the performance, morale, and
discipline of other Soldiers within the command, the chain of command felt
it was best that the applicant was discharged.

5.  Based on the evidence, and based on the fact that the applicant decided
at the time to accept discharge, with the characterization being no less
than under honorable conditions, an upgrade of his discharged would not now
be appropriate.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 December 1986; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
7 December 1989.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____cak _  ___ena__  ____jns__  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _________John N. Slone_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000986                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050915                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19861208                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 14                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.360    |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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