RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2007
	DOCKET NUMBER:  AR20060013019 


	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.



	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 discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, he was discharged because of the malicious intent by higher ranking officials to have him discharged because of his religious background.  The applicant further states he received a lot of harassment from a command sergeant major (CSM) while he was assigned in Korea.  The applicant also states that he started smoking marijuana while in Korea to “ease my mind and keep mellow.”  The applicant further states the harassment because of his religion continued when he was assigned to Fort Hood, Texas.  The applicant also states that due to a delay in his promotion he started smoking marijuana again.  The applicant states that after his urinalysis test came back positive for cocaine he was offered a chance to go to drug and alcohol counseling, face an Article 15 and lose his rank or accept a discharge.  The applicant states he was drained from the entire emotional trauma that he was put through during his time in the Army so he chose to be discharged.

3.  The applicant provides no additional documentation or evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 18 August 1986, the date of his discharge.  The application submitted in this case is dated 14 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 applicant’s failure to timely file.

3.  The applicant's military records show he initially enlisted in the Regular Army on 19 March 1980 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 13E (cannon fire direction specialist).

4.  On 22 October 1982, the applicant reenlisted for a period of 6 years.
5.  On 3 August 1983, the applicant was convicted by a summary court-martial (SCM) of being absent from his appointed place of duty.  

6.  The applicant was assigned to the 1st Battalion, 15th Field Artillery, 2nd Infantry Division in Korea during the period from 6 April 1984 to 17 April 1985.

7.  The applicant was assigned to 1st Battalion, 21st Field Artillery, 1st Cavalry Division at Fort Hood, Texas from 22 May 1985 to the date of his discharge.

8.   Headquarters, 1st Cavalry Division, Fort Hood, Texas Orders 138-153, dated 22 July 1985 promoted the applicant to specialist five/pay grade E-5 effective
22 July 1985.

9.  On 30 May 1986, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of cocaine.  The applicant’s cocaine use was detected as a result of an urinalysis test on 
15 January 1986.  The applicant appealed the NJP and on 12 June 1986 the division commander, a major general, denied his appeal.

10.  The applicant's separation processing package was not available for the Board's review.

11.  On 19 August 1986, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct - drug abuse with a characterization of service of under other than honorable conditions.  

12.  On 2 June 1989 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

13.  Army Regulation 635-200 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.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that 
the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

15.  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 Army Discharge Review Board (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 Army Board for Correction of Military Records (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 applicant’s contentions of harassment based on his religion are not supported by evidence of the record.  The applicant was processed for discharge under the mandatory provisions of Chapter 14 of Army Regulation 635-200 for drug offenders in pay grade E-5 and above.  The applicant has not submitted any corroborating documentation or other evidence to support his contentions.

2.  Although the applicant's separation package was not available it is presumed that the Army's administrative processing of the applicant for discharge is correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

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

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 2 June 1989.  As a result, the time for the applicant to file a request for correction of any injustice to this Board expired on 1 June 1992.  However, 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__  ___rsv___  ___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.




__________James E. Anderholm_____
          CHAIRPERSON




INDEX

CASE ID
AR20060013019
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070306
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.