RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 29 March 2007
DOCKET NUMBER: AR20060012701
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. Gerard W. Schwartz
Acting Director
Mr. W. W. Osborn, Jr.
Analyst
The following members, a quorum, were present:
Mr. Lester Echols
Chairperson
Ms. Linda M. Barker
Member
Mr. Michael J. Flynn
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 honorable.
2. The applicant states that he was very young and naive when he was in the service. He has since learned a lot about his mistakes. He now has a son entering the service and would like this change for both their sakes.
3. The applicant provides no additional documentation.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged injustice which occurred on 12 February 1986. The application submitted in this case is dated 28 August 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 applicants failure to timely file.
3. The applicant enlisted in the Regular Army and entered active duty on
5 December 1984. He completed training and was awarded MOS (military occupational specialty) 11H as a Heavy Anti-Armor Crewman. He completed basic parachute training and was awarded the Parachute Badge. On 1 October 1985 he was advanced to private first class (E3).
4. At a mental status evaluation on 23 January 1986, the applicant's behavior was normal. He was fully alert and oriented and displayed an unremarkable mood. His thinking was clear, his thought content normal and his memory good. There was no significant mental illness. The applicant was mentally responsible. He was able to distinguish right from wrong and to adhere to the right.
5. On 24 January 1986 he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for using cocaine. The punishment included reduction to pay grade E1.
6. On 30 January 1986 the applicant consulted with counsel and acknowledged that he was being considered for administrative separation for misconduct by illegal drug abuse. He requested representation by appointed military counsel but did not submit any statement in his own behalf. He also acknowledged that he could expect to encounter substantial prejudice in civilian life if a general discharge were issued.
7. The company commander recommended that a rehabilitative transfer be waived and that the applicant be separated with a general discharge. The separation authority approved the recommendations and on 12 February 1986 the applicant was separated with a general discharge under honorable conditions. He had 1 year, 2 months and 12 days of creditable service.
8. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. 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. Individuals in pay grades E-5 and above must 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. The issuance of a discharge under other than honorable conditions is normally considered appropriate.
9. There is no indication the applicant applied to the Army Discharge Review Board.
DISCUSSION AND CONCLUSIONS:
1. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. Considering that a discharge under other than honorable conditions is normally considered appropriate, the character of the discharge was actually lenient.
2. 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.
3. Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 February 1986, the date of the discharge; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 11 February 1989. 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
__LE ___ __MJF __ __LMB __ 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.
__ Lester Echols_____
CHAIRPERSON
INDEX
CASE ID
AR20060012701
SUFFIX
RECON
DATE BOARDED
20070329
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19860212
DISCHARGE AUTHORITY
AR 625-200 . . . . .
DISCHARGE REASON
A66.00
BOARD DECISION
NC
REVIEW AUTHORITY
ISSUES 1.
A93.01
2.
3.
4.
5.
6.
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