RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 September 2005
	DOCKET NUMBER:  AR20050000997 


	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

Ms. Judy L. Blanchard

Analyst

The following members, a quorum, were present:


Mr. Stanley Kelley

Chairperson

Ms. Barbara J. Ellis

Member

Mr. Richard T. Dunbar

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, an upgrade of his discharge.  

2.  The applicant states, in effect, that it became evident to his chain of command that he was disturbed.  However, he was not given any type of counseling, but basically being allowed to self destruct, assuring himself an unfortunate early release under other than honorable conditions.  He further states in effect, that in the order of fairness and consideration of 2 years of overseas service and the lack of insight on the part of his chain of command to obtain counseling for him.  He should be given consideration in the light of these facts that the separation under other than honorable conditions could have been averted.    

3.  The applicant provides no additional documentation in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice, which occurred on 1 December 1987, the date he was separated from active duty.  The application submitted in this case is dated 23 December 2004.

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 limitations 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’s record shows he enlisted in the Regular Army and entered active duty on 1 October 1985 for a period of 3 years.  He was trained in, awarded and served in military occupational specialty (MOS) 13B10 (Cannon Crew Member) and the highest rank he attained while serving on active duty was pay grade E-3. 

4.  Between 5 May 1986 and 27 February 1987, the applicant was formally counseled on six separate occasions for substandard performance of duty. 

5.  On 28 April 1987, the applicant accepted nonjudicial punishment for the wrongful use and possession of Marihuana.  His imposed punishment was a reduction to pay grade E-1, a forfeiture of $329.00 pay for 2 months, 45 days extra duty and restriction.     

6.  On 5 May 1987, the applicant received a Bar to Enlistment/ Reenlistment Certificate.  The Bar was based on the applicant’s wrongful use and possession of Marihuana and for his substandard performance of duty.   

7.  On 28 September 1987, the applicant was examined and was found mentally and physically competent to withstand board judicial proceedings and meet retention standards.

8.  The facts and circumstances pertaining to the applicant’s discharge proceedings are not in his Military Personnel Records Jacket (MPRJ).  However, the MPRJ does contain separation document (DD Form 214) that contains the authority and reason for the applicant’s discharge.  The applicant authenticated this document with his signature indicating he was discharged under the provisions of Army Regulation 635-200, chapter 14, the character of service was under other than honorable conditions and that the reason for discharge was misconduct-abuse of illegal drugs.  

9.  On 1 December 1987, the applicant was discharged after completing 2 years,
2 months, and 1 day of active military service.  

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members by reason of misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered, although, the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing; it does contain a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s discharge and the applicant authenticated this document with his signature.
2.  The applicant states that his chain of command did not provide counseling and basically allowed him to self destruct was carefully considered and found to be insufficient in merit.  The applicant’s record shows that between May of 1986 and February 1987, he was counseled on six different occasions for poor duty performance and finally for his use and possession of Marihuana, which eventually led to his discharge.  The applicant’s record shows that he violated the Army’s policy of not to possess or use illegal drugs, which compromised the trust and confidence placed in a Soldier.  The applicant as a Soldier had a duty to support and abide by the Army’s drug policies.  By abusing illegal drugs, the applicant risked a military career.  Therefore, there is no evidence nor has the applicant presented any evidence to warrant relief. 

3.  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.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 December 1987.  Therefore, the time for him to file a request for correction of any error or injustice expired on
30 November 1990.  However, he 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

___SK __  __BJE __  __RTD __  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.




_____ Stanley Kelley______
          CHAIRPERSON




INDEX

CASE ID
AR20050000997
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20050901
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.