RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         15 November 2005
      DOCKET NUMBER:  AR20050003939


      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. Stanley Kelley                |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 all references on file at the
Criminal Investigation Command (CIC) and other agencies relating to a 15
April 1991 wrongful possession of cocaine charge be expunged from his
record.

2.  The applicant states, in effect, during a recent background check it
was brought to his attention that a possession and use of cocaine charge
was being reported to the Federal Bureau of Investigation (FBI) by the CIC
without any disposition/resolution.  He stated the authority performing the
background check contacted the Department of Defense (DOD) to get a better
understanding of this charge and DOD officials informed the investigator it
was a felony charge and the applicant’s discharge was equivalent to a
conviction.  He further states that when he requested separation under
Chapter 10, he believed that this would not be a conviction.  He also
claims that the misinterpretation of military law expressed by the
background check reporting authority is very troublesome to him and he is
now wondering what impact this will have on his career, family, and his
overall life.

3.  The applicant provides a self-authored letter in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 5 August 1991.  The application submitted in this case is
dated
9 March 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 10 May 1989.  He was trained in, awarded and served
in military occupational specialty (MOS) 63Y10 (Track Vehicle Mechanic) and
the highest rank he attained while serving on active duty was private first
class (PFC).

4.  On 21 June 1991, a Charge Sheet (DD Form 458) was prepared preferring
three court-martial charges against the applicant for violating Articles
134, 128,
and 112a of the Uniform Code of Military Justice (UCMJ).  Charge I was two
specifications of violating Article 134 by being drunk and disorderly and
breaking restriction.  Charge II was for violating Article 128 by
unlawfully striking another Soldier.  Charge III was for violating Article
112a by wrongfully possessing and using cocaine.

5.  The applicant’s records show that on 27 June 1991 he consulted with
legal counsel and was advised of the basis for the contemplated trial by
court-martial, the maximum permissible punishment authorized under the
UCMJ, the possible effects of an Under Other Than Honorable Conditions
(UOTHC) discharge, and of the procedures and rights available to him.
Subsequent to receiving this legal counsel, the applicant voluntarily
requested discharge for the good of the service, in lieu of trial by court-
martial, under the provisions of chapter 10,
Army Regulation 635-200.

6.  In his request for discharge, the applicant confirmed he was making the
request of his own free will and he acknowledged that he was guilty of at
least one charge against him, or of at least one lesser included offense
therein contained that also authorized the imposition of a bad conduct or
dishonorable discharge.  He also acknowledged his understanding that he
could be furnished an UOTHC discharge, that he could be deprived of many or
all Army benefits, that he could be ineligible for many or all benefits
administered by the Department of Veterans Affairs (VA) and of his rights
and benefits as a veteran under both Federal and State law.  He further
acknowledged that he understood he could expect to encounter substantial
prejudice in civilian life because of the UOTHC discharge.

7.  On 27 June 1991, the separation authority approved the applicant’s
request for discharge and directed that he be reduced to the lowest
enlisted grade, and that he receive an UOTHC discharge.  On 5 August 1991,
the applicant was discharged accordingly.  The DD Form 214 he was issued
confirms the authority for his separation was chapter 10, Army Regulation
635-200 and the reason for his separation was misconduct (for the good of
service-in lieu of court-martial).

8.  On 10 September 1996, the Army Discharge Review Board (ADRB), after
careful consideration of his military records and all other available
evidence, determined the applicant's drug problem partially impaired his
ability to serve and played a major role in his commission of a serious
offense leading to his discharge.  The Board found that the applicant's
misconduct was not representative of the applicant's overall record before
or after these incidents and determined that partial relief in the form of
a general, under honorable conditions discharge (GD) was appropriate.  The
Board determined the reason for his discharge was proper and equitable.

9.  Department of Defense Instruction (DODI) 5505.7 contains the authority
and criteria for titling decisions.  It states, in pertinent part, that
titling only requires credible information that an offense may have been
committed.  It further indicates that regardless of the characterization of
the offense as founded, unfounded, or insufficient evidence, the only way
to administratively remove a titling action from the Defense Central
Investigations Index (DCII) is to show either mistaken identity or a
complete lack of credible evidence to support the initial titling
determination.

10.  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 request to remove all titling actions from his record
because of the impact it may have on his career, family, and his life was
carefully considered.  However, this factor is not sufficiently mitigating
to warrant the requested relief.

2.  The evidence of record confirms the applicant had been charged with
wrongful possession of an unknown amount of cocaine.  It further shows that
after being fully advised of the implications of his discharge, the
applicant voluntarily requested discharge in order to avoid a trial by
court-martial that could have resulted in his receiving a punitive
discharge and confinement.  Further, the record shows the applicant’s
discharge was upgraded to a GD based on the fact his drug use impaired his
ability to serve, which indicates the applicant did in fact use illegal
drugs.  The ADRB also concluded that the authority and reason for the
applicant’s discharge was proper and equitable.

3.  By law and regulation, titling only requires credible information that
a person may have committed an offense.  It further indicates that
regardless of the characterization of the offense as founded, unfounded, or
insufficient evidence, the only way to administratively remove a titling
action from the Defense Central Investigations Index (DCII) is to show
either mistaken identity or a complete lack of credible evidence to support
the initial titling determination.  Therefore, it is concluded that there
is insufficient evidence to satisfy this removal criteria in this case.

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 this requirement.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 10 September 1996.
 As a result, the time for the applicant to file a request for correction
or any error or injustice to this Board expired on 9 September 1999.
However, 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

___SK __  ___JTM  _  ___RLD_  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                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-15                              |
|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        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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