RECORD OF PROCEEDINGS


	IN THE CASE OF:       
	 

	BOARD DATE:           30 August 2005                   
	DOCKET NUMBER:  AR20050001284 


	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. Joseph A. Adriance 

Analyst

The following members, a quorum, were present:


Mr. Paul M. Smith

Chairperson

Ms. Yolanda Maldonado

Member

Mr. Leonard G. Hassell

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 general, under honorably conditions discharge (GD) be upgraded to an honorable discharge (HD). 

2.  The applicant states, in effect, his discharge should be upgraded because it is stopping him from reenlisting in the Army.  

3.  The applicant provides no documentary evidence in support of his application. 

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 27 May 1987.  The application submitted in this case is dated 
20 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 23 March 1984.  He was trained in, awarded and served in military occupational specialty (MOS) 13B (Cannon Crewman).

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in Item 18 (Appointments and Reductions), that he was promoted to specialist four (SP4) on 1 January 1986, and this was the highest grade he attained while serving on active duty.  It further shows that on 13 January 1986, he was reduced to private/E-2 (PV2) and on 23 April 1987, he was reduced to private/E-1 (PV1), which is the rank he held on the date of his discharge.  

5.  The applicant’s DA Form 2-1 further shows that during his active duty tenure, he earned the Army Good Conduct Medal, Army Service Ribbon, Overseas Service Ribbon, Air Assault Badge, Marksman Qualification Badge with Rifle Bar and Expert Qualification Badge with Grenade Bar.  

6.  On 13 January 1986, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for the wrongful use of marijuana.  His punishment included a reduction to PV2, forfeiture of $250.00 per month for two months, and 45 days of restriction and extra duty.  

7.  On 23 April 1987, the applicant accepted NJP for the wrongful use of marijuana.  His punishment included a reduction to PV1, forfeiture of $329.00 per month for two months and 45 days restriction and extra duty.  

8.  On 13 May 1987, the unit commander notified the applicant he was initiating separation action on him under the provisions of chapter 14, Army Regulation 635-200, by reason of commission of a serious offense (illegal drug use).  The unit commander cited the applicant’s illegal use of marijuana on two separate occasions as the basis for the action. 

9.  The applicant was advised of his rights and completed a statement waiving his right to personal appearance before a board of officers and elected not to submit a statement in his own behalf.  

10.  On 19 May 1987, the separation authority approved the applicant’s separation and directed he receive a GD.  On 27 May 1987, the applicant was discharged accordingly.  The separation document (DD Form 214) he was issued at the time confirms he was separated under the provisions of paragraph 14-12d, 
Army Regulation 635-200, by reason of misconduct (drug abuse) after completing a total of 3 years, 5 months and 6 days of active military service.  

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


12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

2.  By violating the Army's policy not to possess or use illegal drugs, the applicant compromised the special trust and confidence placed in him as a Soldier and  knowingly risked his military career.  This misconduct clearly diminished the quality of his service below that meriting a fully honorable discharge.  

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 the aforementioned requirement.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 27 May 1987.  Thus, the time for him to file a request for correction of any error or injustice expired on 26 May 1990.  He failed to 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

___PMS_  ___YM __  ___LGH _  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.




		____Paul M. Smith_______
		        CHAIRPERSON





INDEX

CASE ID
AR20050001284
SUFFIX

RECON

DATE BOARDED
2005/08/30
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
1987/05/27
DISCHARGE AUTHORITY
AR 635-200 C14
DISCHARGE REASON
Misconduct - Drug Abuse
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.  189
110.0000
2.

3.

4.

5.

6.