RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 September 2006
      DOCKET NUMBER:  AR20060001129


      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. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 his general discharge (GD)
under honorable conditions be upgraded.

2.  The applicant states, in effect, that at the time of his offense, he
was going through a lot of things in his home life.  His spouse and
children were in a major accident and yes, he smoked some marijuana.  It
was a one time thing and his unit just happened to have a UA (urinalysis)
two days later.  He did not condone the use of any drugs and is ashamed of
his actions.  He was not offered any other thing but a discharge.  His BC
(battalion commander), at that time, wanted to make an example of someone
and he was the one.  He would like to remove this one part of his
discharge.  He is very proud of his service except this one incident and
would be proud to serve in the Army again.

3.  The applicant provides no additional documentation in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 February 1988, the date of his discharge.  The application
submitted in this case is dated 12 January 2006.

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 on
14 November 1978, for training as an armor crewman (19D).

4.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification Record
– Part II), shows that he was absent without leave (AWOL) from 13 to
25 February 1980 (13 days).

5.  He was promoted to staff sergeant (SSG) effective 9 October 1985.

6.  The applicant tested positive for THC (tetrahydrocannabinol) on
9 October 1987.

7.  On 15 December 1987, the applicant was punished under Article 15,
Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana.
His punishment consisted of a reduction to pay grade E5, a forfeiture of
pay, and 45 days extra duty.

8.  On 27 April 1987, the applicant's commander initiated action to
eliminate the applicant, under the provisions of Army Regulation 635-200,
paragraph 14-12c, for misconduct, abuse of illegal drugs.  He based his
recommendation on the applicant's one time abuse of illegal drugs.

9.  The applicant acknowledged receipt and consulted with counsel.  He
waived his rights and elected not to submit a statement in his own behalf.


10.  On that same day, the commander submitted his recommendation to
separate the applicant under the provisions of AR 635-200, chapter 14-12c.

11.  The separation authority approved the recommendation for the
applicant's discharge on 27 January 1988 and directed that he be issued a
GD.  The applicant was discharged on 3 February 1988, in the pay grade of E-
5.  He had a total of 9 years, 2 months, and 20 days of creditable service.


12.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.

13.  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.

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

15.  Army Regulation 635-200, paragraph 3-7a, 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, 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.

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.  The type of discharge
directed and the reasons therefore were appropriate considering all of the
facts of the case.

2.  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.

3.  There is no evidence in the applicant's records, and the applicant has
provided none, to show that he applied for an upgrade of his discharge to
the ADRB within its 15-year statute of limitations.

4.  Careful consideration has been given to the applicant's contentions,
that at the time of his offense, he was going through a lot of things in
his home life and his spouse and children were in a major accident.
However, there is no evidence in the available records, and the applicant
has provided no evidence, to show he requested assistance for his problems
from his chain of command or through social service organizations available
to him.  As a noncommissioned officer (NCO) in pay grade E-6, he should
have known of their availability since he was in a position which required
him to counsel subordinate Soldiers in the resolution of their problems.

5.  The applicant's contention that his BC wanted to make an example of
someone and he was the one, was considered; however, the applicant provided
no evidence of this.  The evidence shows the applicant tested positive for
the abuse of marijuana and the BC's actions were driven by regulation.  It
is apparent the command had no compassion for Soldiers, especially for
NCOs, who used drugs.

6.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 February 1988; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 2 February 1991.  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

___ALR__  _QAS___  __LB____  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.




                                  ___    Allen L. Raub ________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001129                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060912                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19880203                                |
|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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