RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 October 2006
      DOCKET NUMBER:  AR20060004398


      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. Patrick H. McGann, Jr.        |     |Chairperson          |
|     |Mr. David R. Gallagher            |     |Member               |
|     |Mr. Roland S. Venable             |     |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 discharge, characterized as under other
than honorable conditions (UOTHC), be upgraded to honorable.

2.  The applicant states, in effect, that he did not receive a court-
martial and he attempted to have it removed but was unsuccessful.  He is
currently asking for a change in his discharge because he knows what he did
was not right and has paid for it for many years.  He loves his country and
is sorry for what he did.  He understands that he cannot return but would
like to try and become a Federal Government employee and give back what he
has lost.  He would like to work for the Federal Government but may not
have the chance to if his discharge is not upgraded.  He is now asking for
assistance to give back to his country because his country has always been
there for him.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 13 November 1984, the date of his discharge.  The application
submitted in this case is dated 14 March 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 record shows he enlisted in the Regular Army on
13 November 1978.  The applicant successfully completed basic combat
training at Fort Jackson, South Carolina, and advanced individual training
at Fort Knox, Kentucky.  On completion of his advanced training, he was
awarded the military occupational specialty (MOS), 11C, Indirect Fire
Infantryman.

4.  On 30 April 1984, the applicant tested positive for marijuana.

5.  On 2 May 1984, the applicant was punished under Article 15, Uniform
Code of Military Justice (UCMJ), for failing to obey a lawful command from
his superior commissioned officer and for wrongfully communicating a threat
to two noncommissioned officers to injure them by killing them.  His
punishment consisted of a forfeiture of pay and 14 days extra duty.

6.  On 12 July 1984, the applicant was barred from reenlistment.

7.  On 23 July 1984, the applicant's commander recommended that he be
separated from the service under the provisions of Army Regulation 635-200,
paragraph 14-12c, for misconduct-commission of a serious offense.  He based
his reasons on the applicant's misuse of marijuana, which was considered a
serious offense, and his other adverse actions. The commander informed the
applicant that the least favorable characterization of service he could
receive would be under other than honorable conditions.

8.  After consulting with counsel, the applicant requested consideration of
his case by and appearance before a board of officers.  He also requested
representation by counsel and elected not to submit a statement in his own
behalf.

9.  On 11 October 1984, the applicant appeared before the separation board
with counsel.  The separation board found that the applicant was
unacceptable for further retention in the military due to his commission of
a serious offense.

10.  The board recommended that he be discharged from the service with the
issuance of a discharge certificate under other than honorable conditions.

11.  The applicant was discharged on 13 November 1984, under the provisions
of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct-
drug abuse.  He had completed 6 years and 1 day 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, 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.

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

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

16.  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.

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

3.  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.


4.  The applicant alleges that he did not receive a court-martial and
attempted to have it removed but was unsuccessful.  The  evidence shows
that his commander recommended that he appear before an administrative
separation board for his serious misconduct.  The applicant's contention,
that he did not receive a court-martial while serving on active duty, is
correct.

5.  The Board acknowledges the applicant's desire to have his discharge
characterized as UOTHC upgraded in order for him to obtain employment with
the Federal Government; however, the Board does not change the character of
service for the purpose of a former servicemember obtaining employment
opportunities.

6.  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.

7.  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.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 November 1984; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 12 November 1987.  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

__PM ___  __DRG__  __RSV__  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.




                                  _____Patrick H. McGann, Jr.___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004398                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061011                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19841113                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 14-12c              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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