RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 September 2006
      DOCKET NUMBER:  AR20060002185


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Thomas M. Ray                 |     |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 discharge (GD) be upgraded to
honorable and his reason for separation be changed from misconduct -
illegal use of drugs to Convenience of the Government.

2.  The applicant states his command abused its authority when it
discharged him and gave him a "bad" discharge.  His overall conduct and
efficiency ratings were good.  He received Articles 15 for isolated or
minor incidents.  He was not given the opportunity to attend any drug
rehabilitation programs while on active duty but has done so since his
discharge.

3.  The applicant provides no additional supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 19 August 1988, the date of his discharge.  The
application submitted in this case is dated 10 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 records show the applicant entered active duty on 29 April 1986 and
completed training without any recorded negative incidents.

4.  The applicant participated in a random urinalysis on 6 December 1986.
The specimen provided under his name tested positive for marijuana.  A DA
Form 2496 from the Alcohol and Drug Abuse Prevention and Control Program
(ADAPCP), indicates the applicant tested positive for marijuana.  The form
includes a response portion to be completed by the applicant’s command as
to what action the command was going to undertake.  The applicant’s command
indicated he would receive company grade nonjudicial punishment (NJP) under
Article 15, Uniform Code of Military Justice.

5.  On 13 February 1987 the applicant received NJP for wrongful use of
marijuana.  The punishment imposed was 14 days of extra duty and
restriction, reduction to private, pay grade E-1, and a forfeiture of
$153.00 pay per month for 1 month.

6.  A DA Form 2496, dated 24 June 1987 from the ADAPCP, indicates the
applicant tested positive for marijuana on a second specimen.  This form
includes a portion that requires the applicant’s command to include what
action the command was going to take.  The applicant’s command indicated he
would receive a battalion grade NJP and separation processing under the
provisions of chapter 9, Army Regulation 635-200.

7.  There is no indication the applicant attended any ADAPCP in or out
patient treatment programs or that separation processing under the
provisions of
chapter 9 was further considered or initiated.

8.  On 30 July 1987 the applicant received a company grade NJP for wrongful
use of marijuana.  The punishment imposed included 45 days of extra duty
and restriction, and reduction to private, pay grade E-2.  The entire
sentence was suspended for 6 months if not vacated sooner.  The unit
commander, Captain H____, administered this NJP.

9.  On 7 March 1988 the applicant received a negative counseling statement
from Captain H____.  The statement indicated the unit commander had been
notified that the applicant had two prior positive urinalyses and had lost
government equipment, military TA/50 clothing.

10.  The applicant received negative counseling statements for issuing two
dishonored checks, one in May 1988 and a second in July 1988.  The
supporting documentation with the dishonored checks indicates the applicant
made immediate restitution upon notification by his command.  It appears
that there was a change of unit commanders between March 1988 and May 1988
since these counseling statements were signed by a Captain J____.

11.  In July 1988 he received a favorable counseling statement commending
him on his job performance.

12.  The available record contains a memorandum addressed to the applicant
and a second memorandum addressed to the discharge authority.  Both are
related to the applicant being notified of a proposed separation action
under the provisions of paragraph 14-12c, Army Regulation 635-200, for
misconduct – abuse of illegal drugs.
13.  The memoranda indicates the reasons for the proposed separation action
were that the applicant committed serious misconduct by wrongfully using
marijuana, that this was his second drug related offense, and that he had
written dishonored checks.

14.  The memorandum to the discharge authority stated “the applicant has
indicated by his misconduct that he has no desire to become a disciplined
Soldier."  This memorandum stated that the applicant committed serious
misconduct by wrongfully using marijuana, that this was his second drug
related offense, and that he had written dishonored checks.  It also
contains the handwritten notation that the applicant had an excessive
unpaid telephone bill.  This issue was not addressed in the notification to
the applicant.

15.  The applicant acknowledged the separation notification and submitted a
statement in his own behalf.  The applicant stated that he had turned
himself around.  He acknowledged that the dishonored checks were due to
miscommunication with his wife not a deliberate act.  He reported that he
had attended ADAPCP and had participated in drug screening since his last
positive specimen with all of them coming back negative, that he had
improved his physical fitness performance scores, and that he had received
a certificate of appreciation from Colonel K____.

16.  A 2 August 1988 DA Form 4126-R (Bar to Reenlistment Certificate)
indicates the applicant was barred from reenlistment.  This form indicates
the reason for the bar is that the applicant had received two NJPs for
wrongful use of marijuana, 13 February 1987 and 30 January 1987, and that
he had two negative counseling statements for dishonored checks, in May and
July of 1988.

17.  On 2 August 1988 the Office of the Staff Judge Advocate, Fort Drum,
New York, reviewed the separation action and found it to be legally
sufficient.

18.  On 3 August 1988 the Battalion Commander recommended approval of the
separation action and noted the action would create indebtedness to the
government in the amount of $1,938.50.  The indebtedness was due to
recoupment of a portion of the applicant’s cash enlistment bonus to which
he would no longer be entitled.

19.  The discharge authority approved the discharge action and directed the
applicant’s service be characterized as under honorable conditions
(general).

20.  The applicant was discharged under the provisions of paragraph 14-12c,
Army Regulation 635-200, for misconduct – abuse of illegal drugs.  He had
completed 2 years, 3 months, and 21 days of creditable service with no time
lost.

21.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) within its 15-year statute of limitations.

22.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), sets forth the basic authority for the separation of enlisted
personnel from active duty.

      a.  Chapter 9 provides the authority and outlines the procedures for
discharging Soldiers for alcohol or other drug abuse rehabilitation
failure.  A Soldier who is enrolled in the ADAPCP for alcohol/drug abuse
may be separated because of inability or refusal to participate in,
cooperate in, or successfully complete such a program.  When not precluded
by the limited use policy, offenses involving alcohol or drugs may properly
be the basis for discharge proceedings under chapter 14;


      b.  Chapter 14, as then in effect, dealt with separation for various
types of misconduct, which include drug abuse, and provides that
individuals identified as drug abusers, in pay grades E-5 and above, will
be processed for separation upon discovery of a drug offense.  Those in pay
grades below E-5 may also be processed after a first drug offense and must
be processed for separation after a second offense.  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; and


      c.  Paragraph 14-12 lists three specific categories: a) minor
disciplinary infractions, b) a pattern of misconduct, or c) commission of a
serious offense.  Abuse of illegal drugs is listed as serious misconduct.
However, relevant facts may mitigate the nature of the offense.  Therefore,
a drug abuse offense may be combined with one or more minor disciplinary
infractions or incidents of other misconduct and processed for separation
under a or b, as appropriate.  It further states that all Soldiers against
whom charges will not be referred to a court-martial authorized to impose a
punitive discharge or against those whom separation action will not be
initiated under the provisions of chapter 9 or section II of this chapter
will be processed for separation under a, b, or c, above, as applicable.


23.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  A
punitive discharge is authorized for offenses under Article 112a, illegal
use of drugs, and Article 123a, writing checks with insufficient funds.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received a general discharge for illegal drug use when
most Soldiers who are separated under this provision receive an under other
than honorable conditions discharge.  Adding to the drug charges are the
ones related to his financial problems that, in and of themselves, could
have resulted in a court-martial with issuance of a punitive discharge.
These factors make the GD a generous characterization of service.

2.  Although the applicant was allowed to continue to serve for over a year
after his second positive urinalysis specimen, this amounted to him having
other problems.

3.  Despite the lack of timely processing on the drug offenses, the
discharge was found to be legally sufficient.

4.  Notwithstanding that the applicant committed misconduct other than the
use of illegal drugs to change his narrative reason for separation to show
that he was separated for the Convenience of the Government is not
appropriate when the reason for separation was clearly misconduct/abuse of
illegal drugs.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 August 1988; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 18 August 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

__JEA__    _ML               TMR   _  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 E. Anderholm_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060002185                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060919                                |
|TYPE OF DISCHARGE       | GD                                     |
|DATE OF DISCHARGE       |19880819                                |
|DISCHARGE AUTHORITY     | AR 635-200. . . . .                    |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          | DENY                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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