RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 April 2007
      DOCKET NUMBER:  AR20060014712


      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:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dale E. DeBruler              |     |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, in effect, that his general under honorable
conditions discharge be upgraded to fully honorable.

2.  The applicant states that when he was discharged he was dealing with
depression as well as a divorce.  He also had news that his mother was
dying of cancer (she passed in June of 1988).  Up to that point, he had
been an exemplary Soldier.  His record spoke for itself.  It is his belief
that had he been afforded the opportunity to obtain psychological
intervention he would have retired from the Army with no adverse actions
against him.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 January 1988.  The application submitted in this case is
dated 16 October 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 having had prior service, the applicant enlisted in the Regular
Army on   8 September 1983.  He was promoted to Sergeant, E-5 on 2
September 1984.  He was honorably discharged on 8 June 1986 and immediately
reenlisted on       9 June 1986.

4.  On 7 January 1987, the applicant was counseled for signing out on a 7-
day leave before his leave was approved.

5.  On 3 March 1987, the applicant was counseled by Sergeant First Class
(SFC) M___ for taking off after Staff Duty Noncommissioned Officer duties
after being instructed not to leave until SFC M___ had a chance to speak
with him.  The applicant rebutted this counseling, stating he spoke with
the Command Sergeant Major, who then released him and said he could speak
with SFC M___ later.
6.  In July or August 1987, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being
derelict in the performance of his duties in that he negligently failed to
properly post the guards on their post as it was his duty as Sergeant of
the Guard to do.  His punishment was a reduction to pay grade E-4,
restriction for 45 days, and extra duty for       45 days.

7.  A DA Form 3975 (Military Police Report), dated 15 July 1987, with two
sworn statements (from the applicant and another Soldier), indicates the
applicant admitted he had been smoking marijuana periodically since the
summer of 1985.

8.  On 11 August 1987, the applicant accepted NJP under Article 15, UCMJ
for wrongfully possessing some amount of marijuana on or about 25 April
1987 and for wrongfully using marijuana on or about 25 April 1987.  His
punishment was a reduction to pay grade E-1, a forfeiture of $329.00 pay
per month for 12 months (suspended), restriction for 45 days, and extra
duty for 45 days.

9.  On 15 October 1987, the applicant was counseled for indebtedness.

10.  On 22 October 1987, the applicant underwent a mental status
evaluation.  He was found to have the mental capacity to understand and
participate in proceedings.

11.  On 16 December 1987, the applicant’s commander notified him he was
initiating action to eliminate the applicant under the provisions of Army
Regulation 635-200, paragraph 14-12c.  He noted the reasons for his
proposed action as the applicant’s one-time abuse of illegal drugs.  In
addition, the commander noted the applicant had established a pattern of
misconduct consisting of indebtedness, disobeying lawful orders, and making
and uttering worthless checks.

12.  On 16 December 1987, the applicant was advised by consulting counsel
of the basis for the contemplated separation action.  He waived personal
appearance and consideration of his case by a board of officers on the
condition he received a general discharge.  He submitted a statement in his
own behalf.

13.  In his statement, the applicant stated he felt he was railroaded.  He
admitted he made mistakes, but not to the degree it “was inflated to by my
chain of command.”  He stated he had a remarkable record up to March 1987.
He stated he lost his wife and daughter, his financial security, and his
career.  He requested his records be reviewed and he be granted an
honorable discharge.

14.  The applicant also provided a statement from the Division Social
Worker.  The Social Worker stated the applicant began treatment at the
Division Mental Health Section on 25 February 1987 for a major depression
caused primarily by on-the-job intimidation.  SFC M___ was responsible for
the applicant’s occupational problem.  The Social Worker stated SFC M___
was a self-referral to the Division Mental Health Section, a fact known by
the applicant.  The Social Worker stated SFC M___ was a very intelligent
man who the Social Worker believed probably got himself into a position of
being able to blackmail his chain of command, which enabled him to exert
malicious influence over the applicant’s career.

15.  The Social Worker stated the applicant was referred to the Inspector
General’s Office in March 1987.  Immediately, the applicant was reassigned
within the battalion and felt conditions had improved.  However, it
appeared SFC M___ continued to exert his negative influence resulting in
the applicant receiving two Article 15s.

16.  On 16 December 1987, the applicant’s commander recommended the
applicant for separation under the provisions of Army Regulation 635-200,
chapter 14 for misconduct – abuse of illegal drugs.  The commander also
noted the applicant established a pattern of misconduct consisting of
indebtedness, disobeying lawful orders, and making and uttering worthless
checks.  The commander recommended the applicant receive a general
discharge.

17.  On 12 January 1988, the appropriate authority approved the request and
directed the applicant receive a general discharge.

18.  On 22 January 1988, the applicant was discharged, with a general
discharge, in pay grade E-1, under the provisions of Army Regulation 635-
200, paragraph 14-12c for misconduct – abuse of illegal drugs.  He had
completed a total of 7 years, 4 months, and 13 days of creditable active
service and had no lost time.

19.  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, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed and an unfit medical condition is
not the direct or substantial contributing cause of his misconduct.  A
discharge under other than honorable conditions is normally appropriate for
a Soldier discharged under this chapter.  However, the separation authority
may direct a general discharge if such is merited by the Soldier’s overall
record.

20.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended he was dealing with depression as well as
divorce and his mother’s dying of cancer.  He contended that had he been
afforded the opportunity to obtain psychological intervention he would have
retired from the Army with no adverse actions against him.

2.  The evidence of record shows the applicant was afforded the opportunity
to obtain psychological intervention.  He began treatment at the Division
Mental Health Section on 25 February 1987 for a major depression.  Had he
felt the need for earlier treatment, he could have referred himself to the
Mental Health Section.

3.  The applicant contended that up to the point [when discharge action was
initiated] he had been an exemplary Soldier and his record spoke for
itself.  In the statement he made with his discharge packet, he stated he
had a remarkable record up to March 1987.

4.  The applicant’s record does speak for itself.  In a sworn statement, he
admitted he had been smoking marijuana periodically since the summer of
1985. The applicant’s record indicates he was a lucky Soldier.  He was
lucky to be processed for separation as only a one-time abuser of illegal
drugs and to receive a general under honorable conditions discharge.  His
record of service does not warrant upgrading his discharge to fully
honorable.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 January 1988; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on          21 January 1991.  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

__wdp___  __wfc___  __ded___  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.




                                  __William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060014712                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070426                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19880122                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 14. . . . .              |
|DISCHARGE REASON        |A66.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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