RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         26 October 1005
      DOCKET NUMBER:  AR20050003017


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Conrad V. Meyer               |     |Member               |
|     |Ms. Linda M. Barker               |     |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 Item 24, (Character of Service);
Item 25 (Separation Authority); Item 26, (Separation Code); Item 27,
(Reentry Code); and Item 28, (Narrative Reason for Separation) of his 2
December 1995 separation document (DD Form 214) be corrected.

2.  The applicant states, in effect, that at the time of his discharge, he
was at his expiration of term of service (ETS).  He states that the
regulation for discharges states that any Soldier who completes his active
duty service should receive an honorable discharge, but he received an
under other than honorable conditions discharge (UOTHC) discharge

3.  The applicant provides his DD Form 214 and a Review Boards Agency
Letter, dated 9 February 2005, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 2 December 1995.  The application submitted in this case
is dated 31 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 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 3 August 1992.  He was trained in, awarded and
served in military occupational specialty (MOS) 71L (Administrative
Specialist).

4.  There applicant’s record is void of a separation packet outlining the
facts and circumstances surrounding his separation processing.  The record
does contain an Army Discharge Review Board (ADRB) case summary documenting
the ADRB’s review of the applicant’s case.  This document shows the
applicant was separated under the provisions of paragraph 14-12c, Army
Regulation 635-200, by reason of misconduct.


5.  The ADRB case summary further shows that on 1 August 1995, the unit
commander notified the applicant he was initiating separation action on him
under the provisions of paragraph 14-12c (2), Army Regulation 635-200, by
reason of commission of a serious offense (abuse of illegal drugs).  The
applicant was advised of his rights and completed a statement requesting
personal appearance at a hearing by a board of officers and elected not to
submit a statement in his own behalf.

6.  The ADRB summary further shows that on 13 November 1995, the applicant
with counsel appeared before an administrative separation board.  After
considering the evidence and hearing testimony, the separation board
recommended the applicant be separated for misconduct with a
characterization of service of UOTHC.  On 1 December 1995, the separation
authority directed that the applicant be discharged with an UOTHC, and on 2
December 1995, the applicant was discharged accordingly.

7.  The DD Form 214 issued to the applicant upon his separation confirms he
was separated under the provisions of paragraph 14-12c(2), Army Regulation
635-200, by reason of misconduct.  It also shows that based on the
authority and reason for his separation, he was assigned a SPD code of JKK
and a corresponding RE code of RE-4.

8.  On 27 January 1999, the ADRB denied the applicant's petition to upgrade
his discharge.

9.  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, convictions 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.  Paragraph 14-12c pertains to a
general commission of a serious offense.  Paragraph 14-12c (2) pertains
specifically to a commission of a serious offense that is drug related.

10.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned RE codes, based on their
service records or the reason for discharge.  Army Regulation 601-210
covers eligibility criteria, policies, and procedures for enlistment and
processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3
of that regulation prescribes basic eligibility for prior service
applicants for enlistment. That chapter includes a list of armed forces RE
codes, including RA RE codes.  RE-4 applies to members permanently
disqualified from further service.  RE-3 applies to persons not qualified
for continued Army service, but the disqualification is waivable.

11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities
(regulatory or directive), reasons for separating soldiers from active
duty, and the SPD codes to be entered on the DD Form 214.  It states, in
pertinent part, that the SPD code of JKK is appropriate code to assign to
soldiers separated under the provisions of paragraph 14-12c (2), Army
Regulation 635-200, by reason of misconduct (commission of a serious
offense-drug related).  The SPD/RE Code Cross Reference Table included in
the regulation establishes RE-4 as the proper code to assign members
separated with this SPD code JKK.

12.  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 contention that he separated from the Army upon his
expiration term of service (ETS) and that based on the regulation should
have received an HD discharge instead of an UOTHC was carefully considered.
 However, there is insufficient evidence to support his claim.

2.  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.

3.  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.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 January 1999, the date his case was
last considered by the ADRB.  Therefore, the time for him to file a request
for correction of any error or injustice expired on 26 January 2002.  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

___JEV _  ___CVM__  __LMB _  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.




                                  _____James E. Vick__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003017                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005-10-26                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1995/12/02                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |Chapter 14                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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