RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 April 2007
      DOCKET NUMBER:  AR20060013357


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Scott W. Faught               |     |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 under honorable conditions
discharge be upgraded to honorable and, in effect, that his discharge be
voided and his records corrected to show he was transferred to the
Individual Ready Reserve.

2.  The applicant states he was in the hospital at Fort Bliss, TX.  He was
being discharged from the hospital, but he was in severe pain.  The doctor
gave him a [pain] medication for gout in the toe and ankle.  It did not
work.  The doctor sent an orderly to give him another medication that the
applicant had to sign for.  The applicant has no idea what the medication
was, but it worked.  He could walk and he was finally discharged.  The
orderly told him to keep the rest of the pills.  It was only seven or eight
pills in a medicine bottle with no name, just a white label on it.

3.  The applicant states he went to drill the next weekend at Fort Jackson,
SC.  He did not have to go to drill that weekend.  He went because he was
dedicated and wanted to be with his unit and his Soldiers.  The word was
that they were having a urinalysis test.  He told his commander he was
taking a medication.  The commander said to write down whatever he was
taking.  She knew he was just getting out of the hospital because Fort
Bliss called his unit.  He wrote down the medication he knew about and
wrote a statement about the one he could not identify.

4.  The applicant states he volunteered for another tour.  When he
returned, he was given the results of the urinalysis.  Before he could do
anything about it, he was sent to Fort Hunter Liggett, CA.  While there, he
went on sick call for back pain.  The doctor asked what medication he was
taking, and he told the doctor he had some pills he did not know the name
of.  The doctor asked for the pills and then went to the pharmacy.  When
the doctor came back, he asked the applicant where he got the pills.  The
doctor told him he should never have been given the pills.  Then he started
thinking about what happened with the urinalysis test.

5.  The applicant states a recruiter told him to contact this Board.  He
really wants to be assigned to the Individual Ready Reserve or as an
Individual Mobilization Augmentee and serve in Afghanistan or Iraq.  He
wants to come out of the Retired Reserve and serve overseas or in the
States.  He only went to the Retired Reserve because of promises made to
him by someone he really trusted that were not kept.

6.  The applicant provides the reverse side of a DA Form 4856 (General
Counseling); a letter, dated 6 February 2002; copies of various awards and
certificates; three evaluation reports; the reverse side of a DA Form 1058
(title unknown, apparently obsolete); and a newsletter article.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 10 March 2003.  The application submitted in this case is
dated      22 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 was born on 20 November 1953.  After having had prior
service in the Regular Army and the U. S. Army Reserve, the applicant
enlisted in the   U. S. Army Reserve on 16 July 1976.  He was promoted to
Sergeant First Class, E-7 on 16 April 1984 in military occupational
specialty 11B (Infantryman).  He was issued his notification of eligibility
for retired pay at age 60 (his 20-year letter) on 23 February 1991.
Effective 25 January 2002, he was reassigned to the 81st Regional Support
Group at Fort Jackson, SC.

4.  The applicant’s discharge packet is not available.  He provided a 6
February 2002 letter, subject:  Description of Service and Character, from
the Secretary of the General Staff, Regional Support Group, 81st Regional
Support Command.  This letter indicated the applicant was a dedicated,
hardworking, and highly professional Soldier who demonstrated a fervent
desire to serve the needs of the Army by frequently volunteering for tours
of active duty both Stateside and overseas.

5.  The applicant provided the reverse side of a DA Form 4856 which
indicated “Soldier coordinated with MAJ C___ his Consulting Counsel.  He
plans to take a Discharge from the U. S. Army Reserve with the option of
returning to the U. S. Army Reserves (sic) within two years.”  On this
form, the applicant indicated, “I agree.  When I took the test my commander
told me to list the medication that I was taking.  I had just gotten out of
the hospital with severe pain and complication (sic) at Ft. Bliss Tex.
Operation Roving Sand.”

6.  Effective 10 March 2003, the applicant was discharged from the U. S.
Army Reserve with a characterization of service of general under honorable
conditions.

7.  The applicant’s assignment history at the U. S. Army Human Resources
Command – St. Louis indicates he was involuntarily discharged on 10 March
2003 due to misconduct – serious offense – drug abuse.

8.  Army Regulation 135-178 establishes policies governing the
administrative separation of enlisted Soldiers from the Army National Guard
of the United States and the U. S. Army Reserve.  Chapter 7 states
discharge action will be initiated against Soldiers in grades E5 through E-
9 on discovery of a drug offense.

9.  Army Regulation 135-178, paragraph 2-9a, 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.

10.  Army Regulation 601-210 governs eligibility criteria, policy and
procedures for enlistment of persons into the Regular Army and the U. S.
Army Reserve.  Paragraph 4-25q of the current version states a person with
prior service whose last discharge from any component of the Armed Forces
was for drug or alcohol abuse or as a rehabilitation failure during his or
her last period of service has a nonwaivable disqualification for
enlistment.  At the time the applicant was discharged, paragraph 4-24x
contained the same policy guidance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been carefully considered.  It appears
he was given incorrect information concerning his eligibility to reenter
the U. S. Army Reserve.  Since the evidence of record indicates he was
being processed for separation due to a drug offense, he had a nonwaivable
enlistment disqualification.  It is possible he would have contested his
discharge had he been given the correct information.

2.  The evidence of record shows the applicant was discharged, not
transferred to the Retired Reserve (although he is still entitled to
retired pay at age 60). However, neither his discharge packet nor evidence
of what medication he was taking (in particular, the medication he stated a
doctor said should never have been given to him) that could have triggered
a positive urinalysis is available.  It is not known what substance the
urinalysis identified.  It cannot be determined if the positive urinalysis
identified a substance in that particular medication or if it identified
some other substance.  At this time, there is insufficient evidence to show
whether the applicant was unjustly discharged.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 March 2003; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on           9 March 2006.  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

__lds___  __jcr___  __swf___  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.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013357                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070405                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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