RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 July 2006
      DOCKET NUMBER:  AR20060000440


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Ms. Marla Troup                   |     |Member               |
|     |Mr. William Crain                 |     |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 his general under honorable conditions discharge
be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his discharge should be upgraded.


3.  The applicant provides no additional documents in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 13 September 1988.  The application submitted in this case is
dated 27 December 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 enlisted in the Regular Army on 14 February 1986 for a
period of three years.  He successfully completed basic training and
advanced individual training and was awarded military occupational
specialty 54E (Chemical Operations Specialist).  He was assigned to Germany
in July 1986.

4.  On 31 January 1987, the applicant tested positive for marijuana.

5.  The applicant received a letter of reprimand on 26 February 1987 for
his inability to manage his personal financial affairs.  The letter of
reprimand was imposed as an administrative measure and not as punishment
under Article 15, Uniform Code of Military Justice (UCMJ).

6.  On 16 March 1987, the applicant accepted nonjudicial punishment under
Article 15, UCMJ for wrongfully using marijuana on or about 16 January
1987.  His punishment consisted of a reduction to E-2 (suspended); 14 days
extra duty; 14 days restriction; and a forfeiture of 7 day’s pay ($191.00)
(suspended).

7.  A bar to reenlistment was imposed against the applicant on 20 March
1987 for his Article 15 dated 16 March 1987; for writing bad checks to the
Army and
Air Force Exchange Service (AAFES) and Club System; and for his letter of
reprimand.

8.  He was promoted to specialist four on 20 November 1987.

9.  On 24 December 1987, the applicant tested positive for marijuana.

10.  On 4 April 1988, the applicant accepted nonjudicial punishment under
Article 15, UCMJ for wrongfully using marijuana on or about 3 December
1987.  His punishment consisted of a reduction to private E-2; a forfeiture
of $376.00 pay per month for 2 months; restriction for 45 days to the
limits of the barracks, place of duty, place of worship, mess hall,
medical/dental clinics, and Post Exchange for health and welfare items
only; and performance of extra duty for 45 days.  His punishment of a
forfeiture of $376.00 was suspended and was remitted unless vacated before
the applicant separated from the Army.  The applicant appealed the
punishment and submitted additional matters.  The appeal was denied.  The
suspension of the punishment of a forfeiture of $376.00 pay per month for
2 months was vacated on 13 April 1988.

11.  On 21 April 1988, the applicant tested positive for marijuana.

12.  On 15 July 1988, the unit commander notified the applicant of
separation action under the provisions of Army Regulation 635-200,
paragraph 14-12c for misconduct - abuse of illegal drugs.  He was advised
of his rights.  The applicant acknowledged notification of separation
action.

13.  On 22 July 1988, the applicant consulted with counsel, voluntarily
waived consideration of his case by an administrative separation board
contingent upon him receiving a characterization of service no less
favorable than general under honorable conditions, and he did not submit
statements in his own behalf.

14.  The company and battalion commanders recommended acceptance of the
applicant’s conditional waiver of his board rights and the issuance of a
general under honorable conditions discharge.

15.  The separation authority directed that the applicant be discharged
under the provisions of Army Regulation 635-200, paragraph 14-12c for
misconduct - abuse of illegal drugs with issuance of a General Discharge
Certificate.

16.  The applicant was discharged from active duty on 13 September 1988
under the provisions of Army Regulation 635-200, paragraph 14-12c.  He
completed 2 years, 6 months, and 30 days of active military service.

17.  The Army Discharge Review Board (ADRB) denied the applicant's request
for an upgrade of his discharge on 6 May 1998.

18.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Chapter 14 established
policy and prescribed procedures for separating members for misconduct.
Specific categories include minor disciplinary infractions, a pattern of
misconduct, commission of a serious offense, and convictions by civil
authorities.  Action would be taken to separate a member for misconduct
when it was clearly established that rehabilitation was impracticable or
was unlikely to succeed.  A discharge under other than honorable conditions
was 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.

19.  Army Regulation 635-200 governs the separation of enlisted personnel.
In pertinent part, it states that an honorable discharge is a separation
with honor.  The honorable characterization is appropriate when the quality
of the Soldier's
service generally has met the standards of acceptable conduct and
performance of duty for Army personnel, or is otherwise so meritorious that
any other characterization would be clearly inappropriate.  Where there
have been infractions of discipline, the extent thereof should be
considered, as well as the seriousness of the offense(s).

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 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 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 evidence of record shows the applicant tested positive for
marijuana on three separate occasions and received nonjudicial punishment
under Article 15 for two of these offenses.

2.  The applicant’s service records show he received a bar to reenlistment
and a letter of reprimand.

3.  Considering the nature of the applicant's offenses, it appears the
chain of command determined that separation under the provisions of Army
Regulation 635-200, paragraph 14-12c for misconduct – abuse of illegal
drugs was appropriate.

4.  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.

5.  After review of the evidence of this case, it is determined that the
applicant has not presented sufficient evidence which warrants changing his
general discharge to an honorable discharge.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 6 May 1998.  As a
result, the time for the applicant to file a request for correction of any
error or  injustice to this Board expired on 5 May 2001.  The applicant did
not file within the ABCMR's 3-year statute of limitations and has not
provided 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

WP______  MT______  WC______  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.




                                  William Powers________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000440                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060720                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19880913                                |
|DISCHARGE AUTHORITY     |AR635-200, chapter 14                   |
|DISCHARGE REASON        |Misconduct-abuse of illegal drugs       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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