RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            18 APRIL 2006
      DOCKET NUMBER:   AR20050009914


      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             |
|     |Mr. Richard J. Eisenbart          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Robert Duecaster              |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Mr. John Heck                     |     |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 be upgraded to an
honorable discharge.

2.  The applicant states in effect, that he desires to have his discharge
changed to an honorable discharge based on the fact that his overall
service was not given due consideration.  The applicant further states that
his failure to file was due to the fact that he was not aware that he could
request a change.

3.  The applicant provides DD Form 149, and a copy of his DD Form 214 as
the source documentation for rendering a decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 December 1985.  The application submitted in this case is
dated 28 June 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 limitation 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 United States Army Reserve (USAR) Delayed
Entry Program (DEP) in Milwaukee, Wisconsin on 13 January 1982 for a period
of 6 years in pay grade E-1.  In connection with this enlistment, the
applicant requested on 29 March 1982, that he be discharged from the USAR
and enlisted in the Regular Army for a period of 4 years under the Airborne
Infantry, Cash Bonus, and the Ultra Veterans Education Assistance Program
(VEAP) enlistment option, with duty in the 11 (Infantry) Career Management
Field (CMF).  He successfully completed his basic combat training (BCT) and
his infantry-advanced individual training (AIT) under the One Station Unit
Training (OSUT) program at Fort Benning, Georgia on 11 July 1982.  He
completed his basic airborne training, also at Fort Benning, Georgia on 29
July 1982.  He was transferred to the 75th Ranger Regiment, Hunter Army Air
Field, Fort Stewart, Georgia, reporting for duty with Company B, 1st
Battalion on 17 August 1982 as a Rifleman.  The applicant was promoted to
pay grade E-2 on 1 December 1982, E-3 on 1 April 1983 and E-4 on 20 October
1983.
4.  While assigned to the 75th Ranger Regiment, the applicant volunteered
for and completed the US Army Ranger Course, the Jungle Warfare Training
Course and the Stinger Transition Training Course.  Additionally, during
his assignment with the 75th Ranger Regiment the applicant participated in
combat operations on the island of Grenada (Operation Urgent Fury), earning
the Armed Forces Expeditionary Medal with the Bronze Arrowhead for an
Airborne Assault and the Combat Infantry Badge (CIB).

5.  On 10 October 1984, the applicant was transferred to the 25th Infantry
Division, Schofield Barracks, Hawaii, reporting for duty with the Combat
Support Company, 1st Battalion, 5th Infantry Regiment on 5 December 1984,
as a Scout Driver.

6.  On 17 July 1985, nonjudicial punishment (NJP) was imposed against him
for wrongful possession of marijuana.  His punishment consisted of a
reduction to the pay grade of E-3, a forfeiture of $ 396.00 pay per month
for 2 months,
45 days of extra duty and restriction to the limits of the battalion area
for 45 days. The applicant underwent a medical examination on 7 October
1985, and a mental status examination on 22 October 1985, of which both
found him to be fit for the purpose of separation.

7.  The available records also indicate that on 8 October 1985, the
applicant was tried by civilian authorities in the District Court of the
First Circuit, Honolulu, Hawaii, on a charge of sales of harmful drugs, for
which the applicant plead guilty.  He received a 10 day jail sentence which
was suspended for 1 year on the condition of no further drug or alcohol
related arrests or convictions for
6 months, and was fined $30.00.

8.  The applicant received a Notification Letter on 21 November 1985,
indicating his commander’s intent to recommend him for separation from the
Army under the provisions of AR 635-200, Paragraph 14-12c for misconduct.
The commander cited the applicants wrongful possession of marijuana and his
conviction by civil authorities as the basis for his recommendation.

9.  The applicant waived his rights and elected to submit a statement in
his own behalf whereas he asserted that based on his overall record of
service and accomplishment, he should receive an honorable discharge.

10.  The recommendation for separation was approved by the appropriate
authority 9 December 1985.

11.  Accordingly, he was discharged under honorable conditions on
20 December 1985 under the provisions of AR 635-200, Paragraph 14-12c for
misconduct-commission of a serious offense.

12.  There is no evidence in the available records to show that the
applicant applied to the Army Discharge Review Board within the board’s 15
year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel with General Discharge, Under Honorable
Conditions.  Chapter 14 of the regulation deals with separation for various
types of misconduct, which includes drug abuse, and provides that
individuals identified as drug abusers may be separated prior to their
normal expiration of term of service.  Characterization of service is
determined solely by the Soldier’s military record that includes the
Soldier’s behavior and performance during the current enlistment.

14.  Title 10, United States Code, section 1552, the authority under which
this Board acts, provides, in pertinent part, that the Board is not
empowered to set aside a conviction.  Rather it is only empowered to change
the severity of the sentence imposed in the court-martial process and then
only if clemency is determined to be appropriate.  Clemency is an act of
mercy, or instance of leniency, to moderate the severity of the punishment
imposed.


DISCUSSION AND CONCLUSIONS:

1.  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, in this
case, has failed to submit evidence that would satisfy this requirement.

2. The applicant’s contentions and supporting documents have been duly
noted by the Board, and the Board commends him for his service
achievements.  However, the Board finds that given the circumstances in his
case and the seriousness of his offenses, his service does not warrant a
fully honorable discharge.

3. The applicant's administrative discharge was accomplished in compliance
with applicable regulations in effect at the time, with no indication of
procedural errors which would tend to jeopardize his rights.  The type of
discharge directed and the reasons therefore appear to be appropriate
considering the available facts of the case.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 December 1985; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 19 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

___RD __  ___RR __  ___JH  __  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.




                                  _____Robert Duecaster_____
                                            CHAIRPERSON














                                    INDEX
|CASE ID                 |                                        |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060418                                |
|TYPE OF DISCHARGE       |(GD-UHC)                                |
|DATE OF DISCHARGE       |19851220                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 14, Para 14-12c          |
|DISCHARGE REASON        |MISCONDUCT-DRUG ABUSE                   |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |642/A61.15                              |
|1.144.6000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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