RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 October 2005
      DOCKET NUMBER:  AR20050002308


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Ms. Laverne Berry                 |     |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 that his general, under honorable conditions
discharge be upgraded to honorable.

2.  The applicant states that he requested an upgrade to honorable, but he
received an upgrade to general, under honorable conditions.

3.  The applicant provides no documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 18 August 1995.  The application submitted in this case is
dated 2 February 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 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.  After having had prior service in the U.S. Army Reserve, the applicant
enlisted in the Regular Army on 4 June 1991.  He completed the required
training and was awarded military occupational specialty 71L
(Administrative Specialist).  He was promoted to specialist on 25 April
1992.

4.  The applicant was reduced to the rank of private first class on 5 May
1993.  There is no record of nonjudicial punishment for this reduction.

5.  He was promoted to specialist again on 1 November 1993.

6.  On 22 June 1995, the applicant was convicted by a summary court-martial
of two specifications of wrongful use of marijuana.  He was sentenced to a
reduction to private E-1, performance of hard labor without confinement for
30 days, and a forfeiture of $200.00 pay for one month.

7.  On 11 July 1995, the unit commander notified the applicant of
separation action under the provisions of Army Regulation 635-200,
paragraph 14-12c for wrongfully using an illegal drug.  He was advised of
his rights.  The applicant acknowledged notification of separation action,
consulted with legal counsel, voluntarily waived consideration of his case
by an administrative separation board contingent upon him receiving a
characterization of service no less favorable than general, under honorable
conditions, and submitted statements in his own behalf.  The statements are
not available.

8.  On 9 August 1995, the applicant consulted with legal counsel again and
elected to waive his right to have his case heard by an administrative
separation board.  He acknowledged that he could be discharged from the
U.S. Army with an under other than honorable conditions discharge.

9.  On 9 August 1995, an Assistant Staff Judge Advocate reviewed the
applicant's case and found no legal objection to approval of the
administrative separation action.

10.  On 10 August 1995, the separation authority withdrew the applicant's
case from the board, approved the separation action and directed issuance
of an under other than honorable conditions discharge.

11.  On 18 August 1995, the applicant was discharged from active duty.  He
completed 4 years, 2 months, and 15 days of active military service.

12.  On 10 July 2000, the applicant applied to the Army Discharge Review
Board (ADRB) for an upgrade of his discharge to general under honorable
conditions.  The ADRB determined that the applicant's characterization of
service was inequitable and upgraded his discharge to general, under
honorable conditions.

13.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Chapter 14 established
policy and prescribed procedures for separating members for misconduct.
Specific categories include minor disciplinary infractions, a pattern of
misconduct, commission of a serious offense, and convictions by civil
authorities.  Action would be taken to separate a member for misconduct
when it was clearly established that rehabilitation was impracticable or
was unlikely to succeed.  A discharge under other than honorable conditions
was normally appropriate for a Soldier discharged under this chapter.
However, the separation authority may direct a general discharge if such is
merited by the Soldier’s overall record.  Only a general court-martial
convening authority may approve an honorable discharge or delegate approval
authority for an honorable discharge under this provision of regulation.

14.  Army Regulation 635-200 governs the separation of enlisted personnel.
In pertinent part, it states that an honorable discharge is a separation
with honor.  The honorable characterization is appropriate when the quality
of the Soldier'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.  Where there
have been infractions of discipline, the extent thereof should be
considered, as well as the seriousness of the offense(s).

15.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3-year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation under the provisions of Army
Regulation 635-200, paragraph 14-12c was accomplished in compliance with
applicable regulations.  At that time, his service was characterized as
under other than honorable conditions.

2.  The applicant's service record shows a summary court-martial for two
specifications of wrongful use of marijuana and a prior reduction in grade
for an unknown offense.

3.  The evidence of record shows the applicant applied to the ADRB for an
upgrade of his under other than honorable conditions discharge to general,
under honorable conditions.  The ADRB determined his characterization of
service was inequitable and upgraded his discharge to general.

4.  Although the applicant now feels that he should have received an
honorable discharge, his service did not meet the standards of acceptable
conduct and performance of duty to warrant an honorable discharge.

5.  There is no apparent error, injustice, or inequity on which to base
recharacterization of his discharge to honorable.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 July 2000, the date of the ADRB
review; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 9 July 2003.  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

CG______  RD______  LB______  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.




                                  Curtis Greenway______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002308                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19950818                                |
|DISCHARGE AUTHORITY     |AR635-200, chapter 14                   |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.000                                 |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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