RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 March 2007
      DOCKET NUMBER:  AR20060013247


      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      |
|     |Ms. Deyon D. Battle               |     |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 he be afforded the opportunity to appear
before an administrative separation board.

2.  The applicant states that he was misrepresented by military counsel and
that his right to due process was violated in that he was never afforded
the opportunity to appear before an administrative separation board.

3.  The applicant provides in support of his application a letter dated 16
August 2006, expressing his version of the events that took place during
his discharge process; a copy of the memorandum notifying his commander
that he had tested positive by urinalysis drug testing; a copy of a
memorandum notifying him of his scheduled physical examination; a copy of
the memorandum that was prepared by his commanding officer, requesting that
he be provided consultation with military legal counsel; a copy of his
notification for separation; a copy of his acknowledgement for the
separation notification; copies of handwritten notes describing his
condition and the medications that he was taking just prior to the
urinalysis; a copy of a memorandum dated 16 June 1992, notifying him to
report to an administrative separation board; a copy of a memorandum dated
17 June 1992, appointing an individual as his defense counsel; a memorandum
dated 22 July 1992 notifying him to report to an administrative separation
board; a copy of a memorandum dated 5 August 1992, appointing an individual
as his defense counsel; a copy of orders dated 30 October 1992, discharging
him from the Alabama Army National Guard (ALARNG); a copy of his Report of
Separation and Record of Service (NGB Form 22E); that copy of his discharge
certificate; a copy of a letter from an attorney dated 16 December 1992,
declining employment; a copy of a letter dated 17 September 1993, declining
him representation; a copy of orders from the Alabama State Military
Department, Personnel Service Branch, dated 7 February 2003, ordering him
to active duty; and a copy of a letter dated 10 February 2003, denying him
reenlistment in the ALARNG.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 23 October 1992.  The application submitted in this case
is dated 16 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.  After completing 2 years, 11 months and 29 days of prior active service
and 2 years, 3 months and 6 days as a member of the United States Army
Reserve, the applicant enlisted in the ALARNG for 1 year, in the pay grade
of E-4.

4.  On 11 April 1988, the applicant was promoted to the pay grade of E-5.

5.  In a memorandum dated 12 September 1991, the applicant was notified
that he had been scheduled for a physical examination on 19 October 1991
and that if he had any surgery since his last physical examination, he was
to bring status information regarding that surgery from his physician.  The
applicant was informed that age 20 through 38 would be required to fast
(water only) for 14 hours prior to the scheduled appointment time.  In the
memorandum, it is noted that fasting does not apply to medication and that
all medications should be taken as prescribed with water only.

6.  On 11 October 1991, the applicant's commanding officer (CO) was
notified that the applicant was identified as testing positive from a drug
urinalysis test conducted in September 1991.  His CO was instructed to
follow the guidance in State Military Department Regulation (SMDR) 600-85
on all Soldiers identified as drug abusers.  His CO was informed that he
had 75 days to forward a reply as to the action taken or to forward a
recommendation for retention or discharge.  In an undated memorandum, the
applicant's CO requested that a consultation with military legal counsel be
provided for the applicant.

7.  On 7 December 1991, the applicant was notified that action to separate
him from the ALARNG under the provisions of Army Regulation 135-178 had
been initiated.  The applicant's CO cited misconduct, abuse of illegal
drugs as the basis for separation action and he informed the applicant of
his rights.  The applicant acknowledged receipt of the notification and he
requested that he be appointed counsel for consultation; consideration of
his case by a board of officers; a personal appearance before a board of
officers; to submit a statement in his own behalf; and representation by
counsel.

8.  In the statement that the applicant submitted in his own behalf, he
stated that on the day of the testing he had a cold; that he had an eye,
ear and nose infection; and that he was recovering from knee surgery.  He
stated that he vomited before taking the test as a result of drinking an
excessive amount of liquids (coffee, water and cokes).  In the statement,
he stated that he had to drink the fluids in a short period of time due to
that fact that he was being rushed by testing personnel.  He stated that he
vomited in the presence of the testing personnel; and that prior to taking
the test he informed them that he was ill.  He stated that on the day of
the test, he ingested Lidocaine, Tylox and Motrin.  The applicant stated
that he was offered a transfer which he declined because to accept a
transfer would be an admission of guilt and he was innocent.  In the
statement the applicant requested to be retested and he expressed his
desire for a hearing before an administrative separation board.

9.  In a memorandum dated 16 June 1992, the applicant was directed to
report to an administrative separation board on 18 July 1992 at the Alabama
National Guard State Military Department conference room.  He was informed
that the purpose of the board was to determine his qualifications for
further military service.  He was informed that his failure to appear
before the separation board may result in his being separated under other
than honorable conditions.  He was also instructed to contact a specific
individual if he had difficulty attending the scheduled board.

10.  On 17 June 1992, the applicant was notified of the individual who had
been designated as his counsel.

11.  It appears that the applicant requested a rescheduling of the
administrative separation board that was scheduled to convene on 18 July
1992.  As a result, on 22 July 1992, the applicant was directed to report
to an administrative separation board on 22 August 1992 at the Alabama
National Guard State Military Department conference room.  He was again
informed that failure to appear before the separation board may result in
his being separated under other than honorable conditions; and that he
should contact a specific individual if he had difficulty attending the
scheduled board.

12.  In a memorandum dated 5 August 1992, the applicant was again notified
of the individual who had been designated as his counsel.

13.  The facts and circumstances surrounding the administrative separation
board on 22 August 1992 are not available for review at this time.
However, the available records indicate that orders were published on 30
October 1992 discharging the applicant from the ALARNG, effective 23
October 1992, under the provisions of National Guard Regulation 600-200,
paragraph 26q, based on acts or patterns of misconduct.  He had completed
17 years, 1 month and 16 days of total service for pay purposes and he was
furnished a General Discharge Certificate.
14.  The available records indicate that the applicant made a attempts to
obtain legal counsel regarding the circumstances surrounding his discharge.
 However, it appears that his attempts were unsuccessful.

15.  The available records also indicate that orders were published on
7 February 2003, ordering the applicant to active duty as a member of his
former Reserve Component Unit with a reporting date of 10 February 2003 and
that the applicant made an attempt to reenter the ALARNG.  The attempt to
reenter was unsuccessful.

16.  National Guard Regulation 600-200 provides for the separation of
enlisted personnel from the Army National Guard.  Paragraph 8-26q provides
for the discharge of Soldiers from the State Army National Guard and/or
from the Reserve of the Army.  It states, in pertinent part, that for
Soldiers being considered for separation due to acts or patterns of
misconduct an administrative discharge board is required (unless waived by
the soldier) when the Soldier has 6 or more years of total military service
or  when the separation authority considers discharge under other than
honorable conditions appropriate.  Acts or patterns of misconduct include
misconduct – abuse of illegal drugs.  All Soldiers identified as abusers of
illegal drugs will be referred for treatment or counseling as appropriate
regardless of the commander's intent to take administrative, nonjudicial or
judicial action.  Commanders must begin separation action or recommend
retention of Soldiers identified as first time drug offenders serving in
the ranks of sergeant through sergeant major.

DISCUSSION AND CONCLUSIONS:

1.  The question in this case is whether or not the applicant was denied
his due process by not being afforded an opportunity to appear before an
administrative separation board.  There is no evidence in the available
records nor has the applicant submitted any evidence to support his
contention that his right to due process was violated or that he was not
afforded an opportunity to appear before an administrative separation
board.

2.  The available records indicate that he was scheduled to appear before
an administrative separation board on 18 July 1992.  However, the hearing
was rescheduled and he should have appeared before an administrative
separation on 22 August 1992.



3.  The applicant's contentions have been noted.  However, based on the
available information it is reasonable to presume that the applicant either
failed to appear as scheduled before the 22 August 1992 administrative
separation board or he did appear before the board and was determined to be
unqualified for further military service.  In either case, there is simply
not enough convincing evidence to support his contentions that he was
misrepresented by military counsel or that his right to due process was
violated.

4.  The Board has noted the fact that the applicant attempted to retain
counsel almost immediately after his separation from the ALARNG.  However,
the fact that he attempted to obtain counsel is not evidence that he was
not afforded due process or that his rights had been violated as he
contends.

5.  It appears that the discharge procedures were conducted with no
indication of procedural error that would have jeopardized his rights.  In
the absence of evidence to the contrary, it must be presumed that what the
Army did in his case was correct.

6.  In order to justify correction of a military record the applicant must
show 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.

7. In view of the foregoing, there is no basis for granting the applicant's
request.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 October 1992; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 22 October 1995.  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

___e____  ___MJF__  ___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.




                                  _____Lester Echols________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013247                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070329                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  768  |144.9000/PROCEDURAL                     |
|2.  773                 |144.9005/OPPORTUNITY FOR BD HEARING     |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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