RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 December 2005
      DOCKET NUMBER:  AR20050006773


      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. Joyce A. Wight                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 discharge (GD) under honorable
conditions be upgraded.

2.  The applicant states that he admitted to having a positive urinalysis
for marijuana but was not given the opportunity for rehabilitation and this
was the only incident in his career.  He felt that had he had the
opportunity to speak with someone about this issue then he would have had
the opportunity to explain that this issue was a one time poor decision on
his part.  He had not tried drugs prior to this and he had not done any
since that time.  He made a one time poor decision and has regretted it
ever since.  He felt that had he been given a chance to make amends he
would have been an exemplary Soldier.  He also states that he received a
couple of awards and had completed the Recondo school while serving and he
felt that along with a spotless record, he should have been given the
opportunity to get counseling to show he could do the right thing.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) and several documents from his
military personnel file, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 June 1987, the date of his discharge.  The application
submitted in this case is dated 6 April 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 military records show he entered active duty (AD) in
the US Army Reserve (USAR) 26 April 1983, as a motor transport operator
(64C).  He was ordered to active duty for training (ADT) on the same day
and was released from ADT on 16 August 1983.  He was transferred to a troop
program unit (TPU), of the USAR.

4.  On 14 March 1984, orders were published by the Military Entrance
Processing Station (MEPS), Wilkes-Barre, Pennsylvania Orders 054-7, which
show that the applicant reenlisted for a period of 3 years with a reporting
date of 15 March 1984 to Fort Bragg, North Carolina.

5.  The applicant's DD Form 214 shows he entered AD in the Regular Army on
14 March 1984.  He was promoted to specialist four (SP4/E-4) on 1 March
1985.

6.  On 5 January 1987, the applicant tested positive for THC
(tetrahydrocannabinol).

7.  The applicant was barred from reenlistment on 13 April 1987.

8.  The applicant underwent a mental status evaluation on 15 April 1987,
which determined that he could distinguish right from wrong and that he
possessed sufficient mental capacity to participate in administrative or
judicial proceedings.  The examining physician indicated that the applicant
was fully alert, fully oriented, his mood or affect was unremarkable and
that his thought process was clear.  The applicant had no disqualifying
mental defects sufficient to warrant disposition through medical channels.
On that same day, he underwent a separation medical examination and was
found qualified for separation.

9.  On 27 April 1987, the applicant's commander advised the applicant that
he intended to recommend him for administrative separation under the
provisions of Army Regulation 635-200, paragraph 14-12c, for his positive
urinalysis test held on 5 January 1987.  The commander notified the
applicant that the proposed separation could result in his receiving a GD
discharge.

10.  The applicant acknowledged receipt and consulted with counsel.  He
waived his rights and elected to submit a statement in his own behalf.
However, his statement is unavailable for review.

11.  On 30 April 1987, the commander submitted his recommendation to
separate the applicant under the provisions of AR 635-200, paragraph 14-
12c, serious offense/drug abuse.  His recommendation indicated that the
applicant was not a rehabilitation transfer to the unit and that a request
for waiver of rehabilitation transfer and further counseling was attached.
However, a copy of this attachment is unavailable for review.

12.  The separation authority approved the recommendation for the
applicant's discharge on 14 May 1987 and directed that he be issued a GD.
The applicant was discharged on 4 June 1987 in the pay grade of E-4.  He
had a total of 3 years, 6 months, and 12 days of creditable service.
13.  The request was reviewed by the command Staff Judge Advocate (SJA) and
was found to be legally sufficient.

14.  The applicant provided several copies of awards and school completion
certificates which attest to his past satisfactory performance and good
record.

15.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge on 21 October 1990.  The ADRB determined that his
discharge was proper and equitable and denied his request on 23 December
1991.

16.  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, abuse of illegal drugs, and convictions by civil authorities. 
Action will be taken to separate a member for misconduct when it is clearly
established that rehabilitation is impracticable or is unlikely to
succeed.  A discharge under other 
than honorable conditions is 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.

17.  Paragraph 14-12c(2) provides for separation for commission of a
serious offense such as abuse of illegal drugs.  

18.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier's separation specifically allows such
characterization.

19.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member's service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

20.  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 of the facts of the case.

3.  The applicant admitted to having a positive urinalysis for marijuana
(THC) but alleges that he was not afforded the opportunity for
rehabilitation; however, his recommendation for discharge clearly indicated
that a request for waiver of rehabilitation transfer and further counseling
was attached but was unavailable for review by the Board.

4.  The applicant also alleges that he did not have the opportunity to
speak with someone; however, he consulted with counsel and waived his
rights.  He submitted a statement in his own behalf that is unavailable for
review.

5.  The evidence shows that this is the only derogatory incident in his
military records; however, according to regulation, drugs would not be
tolerated in the military.  The applicant and all Soldiers are aware of the
no tolerance policy and there are no exceptions to this rule.

6.  The applicant's awards and course completion certificates which attest
to his past performance are not sufficient, by themselves, as a basis to
upgrade his GD to honorable.

7.  The applicant has provided no evidence to show that his discharge was
unjust.  He also has not provided any evidence to mitigate the character of
his discharge.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 23 December 1991.
As a result, the time for the applicant to file a request for correction or
any error or injustice to this Board expired on 22 December 1994.  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

_JH____  _RB_____  __JM____  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 Hise______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006773                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051220                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19870406                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 14                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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