RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 NOVEMBER 2005
      DOCKET NUMBER:  AR20050002508


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas Pagan                  |     |Chairperson          |
|     |Mr. Eric Andersen                 |     |Member               |
|     |Mr. Joe Schroeder                 |     |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 records be corrected by upgrading his
discharge.

2.  The applicant states that he was a victim of discrimination and unjust
prejudice, and was under represented by legal counsel.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), a copy of his DD Form 215
(Correction to DD Form 214, Certificate of Release or Discharge from Active
Duty), and a letter to his Congressman, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 12 February 1985.  The application submitted in this case is
dated 18 November 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 enlisted in the Regular Army on 18 August 1982, for a
period of 3 years, in the pay grade of E-2.

4.  The applicant was promoted to the pay grades of E-3 and E-4 on
18 December 1982 and 1 February 1984, respectively.

5.  The applicant served in Alaska from February 1983 to February 1985.

6.  On 8 May 1984, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15, Uniform Code of Military Justice (UCMJ)
for failing to obey a lawful order from a superior noncommissioned officer
to attend a recertification class in CPR.  His punishment was reduction to
pay grade E-3,
14 days extra duty, and a forfeiture of pay (suspended for 30 days).

7.  On 2 July 1984, he accepted NJP under the provisions of Article 15,
UCMJ for disobeying a lawful order from a commissioned officer to return to
his work area. His punishment was reduction to pay grade E-1, extra duty,
and forfeiture of pay (suspended for 90 days).

8.  On 13 November 1984, he was convicted by a summary court-martial of
destroying a military identification card by cutting it to pieces, and of
disobeying a lawful order to report to his place of duty, the emergency
room, in proper uniform. He was sentenced to 30 days hard labor without
confinement and 15 days of restriction

9.  On 1 August 1984, the applicant was notified by his commander that he
was initiating action to separate him from the service under the provisions
of Army Regulation 635-200, Chapter 14, for misconduct.

10.  On 2 August 1984, after consulting with legal counsel, the applicant
acknowledged that he had been advised of the basis for his commander’s
intent to separate him for misconduct, and requested review of his case by
a board of officers.

11.  On 6 August 1984, the applicant reconsidered his request and waived
his right to have his case reviewed by a board of officers.  He
acknowledged that he understood that if he received a less than honorable
discharge he could encounter substantial prejudice in civilian life.

12.  On 7 August 1984, a mental status evaluation cleared the applicant for
separation.

13.  On 3 October 1984, a medical examination cleared the applicant for
separation.

14.  On 9 October 1984, his commander recommended his elimination from the
service, under the provisions of Army Regulation 635-200, Chapter 14, with
an under other than honorable conditions discharge.

15.  On 2 January 1985, his intermediate commander recommended approval of
his separation with the issuance of an under other than honorable
conditions discharge.

16.  On 3 January 1985, the appropriate separation authority approved the
applicant’s discharge, and directed the issuance of an under other than
honorable conditions discharge.
17.  On 12 February 1985, the applicant was discharged under the provisions
of Army Regulation 635-200, Chapter 14, for misconduct – pattern of
misconduct, with the separation code of JKM.  His DD Form 214 (Certificate
of Release of Discharge from Active Duty) indicates he had 2 years, 5
months, and 23 days of active service, and 2 days of lost time.

18.  On 17 December 1985, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge.  However, the ADRB directed
the Commander, Reserve Component Personal Administrative Center, to issue a
DD Form 215, to correct the applicant’s DD Form 214 to show he was
discharged for Misconduct - Drug Abuse, under the provisions of Army
Regulation 635-200, paragraph 14-12a and b, with the separation code of
JKK.
This request was accomplished on 25 February 1986.

19.  In a letter to his Congressman the applicant states that his discharge
was unfair and unjust and that he joined the military to serve his country.
 He quickly made it to the ranks of E-3 and E-4.  However, he was the
victim of undue prejudice upon arriving in Alaska.  He was threatened with
prison and deportation after two marijuana cigarettes were found in his
room.  He further states that the legal counsel assigned to his case did
not put up a strong defense in his behalf.  He is seeking no personal gain
or benefit; all he wants is peace of mind.

20.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for 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

21.  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 Army Discharge Review Board (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
Army Board for Correction of Military Records (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 was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  There is no evidence in the applicant’s available records nor did he
provide documentation to substantiate his claim that he was a victim of
discrimination or unjust prejudice, nor is there evidence that he was not
adequately represented by counsel.

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

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 17 December 1985.
As a result, the time for the applicant to file a request for correction or
any error or injustice to this Board expired on 16 December 1988.  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

__TP____  __EA ___  __JS____  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.




                                  _____Thomas Pagan________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002508                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051122                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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