RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 June 2007
      DOCKET NUMBER:  AR20060016999


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson.        |     |Chairperson          |
|     |Mr. Ronald D. Gant                |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he served in both the Reserve and
Regular Army (RA) and received many recommendations for his service as a
supply specialist.  He also states he was told his discharge could be
upgraded in 10 years.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 26 September 1991, the date of his discharge.  The
application submitted in this case is dated 20 November 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 record shows that on 6 January 1988, after having
served in the United States Army Reserve (USAR) for 1 year, 5 months and 6
days, he enlisted in the RA and entered active duty.  He served in military
occupational specialty (MOS) 76Y (Supply Specialist) and the highest rank
he attained while serving on active duty was specialist (SPC).

4.  The applicant's record shows that during his active duty tenure, he
earned the National Defense Service Medal, Army Service Ribbon, Marksman
Marksmanship Qualification Badge with Rifle Bar, and Expert Marksmanship
Qualification Badge Hand Grenade Bar.  His record documents no acts of
valor, significant achievement or service warranting special recognition.

5.  On 13 August 1991, the applicant accepted non-judicial punishment (NJP)
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ) for the wrongful use of cocaine.  His punishment for this offense
was a reduction to private/E-2 (PV2), a forfeiture of $422.00 per month for
2 months (suspended) and 45 days of extra duty.

6.  The unit commander notified the applicant that he was initiating action
on him under the provisions of paragraph 14-12c (Abuse of Illegal Drugs)
based on the applicant testing positive for cocaine on a unit urinalysis on
15 July 1991.  The unit commander also informed the applicant he was
recommending he receive a GD.

7.  On 16 September 1991, the applicant consulted with legal counsel and
was advised of the basis for his contemplated separation and its effects,
the rights available to him and the effect of a waiver of those rights.
Subsequent to this counseling, the applicant waived his right to consulting
counsel and elected not to submit a statement in his own behalf.  In his
election of rights, the applicant acknowledged his understanding that he
could expect to encounter substantial prejudice in civilian life if a GD
were issued to him.  He also stated that he understood that he could make
application to the Army Discharge Review Board or Army Board for Correction
of Military Records for upgrading his discharge; however, he realized that
an act of consideration by either board did not imply his discharge would
be upgraded.

8.  On 23 September 1991, the separation authority approved the applicant's
separation under the provisions of paragraph 14-12c, Army Regulation 635-
200 and directed he receive a GD.  On 26 September 1991, the applicant was
discharged accordingly.  The separation document (DD Form 214) he was
issued at the time confirms he completed a total of 3 years, 8 months and
21 days of active military service and held the rank of PV2 at the time.

9.  There is no indication in the record that the applicant petitioned the
Army Discharge Review Board for an upgrade of his discharge within that
board's
15-year statute of limitations.

10.  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, which includes
the abuse of illegal drugs.  It states that action will be taken to
separate a member for misconduct when it is clearly established that
rehabilitation is impracticable or is unlikely to succeed.  A discharge
under other than honorable conditions (UOTHC) is normally considered
appropriate for members separated under this provision of the regulation.
The separation authority may authorize a GD or HD if warranted by the
member's overall record of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his GD to an HD based on his overall
record of service and the fact that he understood his discharge could be
upgraded in 10 years was carefully considered.  However, the evidence of
record confirms the applicant's separation processing was accomplished in
accordance with the applicable regulation.  All requirements of law and
regulation were met and his rights were fully protected throughout the
separation process.  Further, the applicant's election of rights statement,
which he completed during his separation processing confirms he was briefed
on and understood the procedures for applying for an upgrade of his
discharge.

2.  By regulation, an UOTHC discharge is normally considered appropriate
for members being separation under the provisions of paragraph 14-12c, Army
Regulation 635-200, by reason of abuse of illegal drugs.  In this case, the
separation authority elected to issue the applicant a GD, which appears to
have been based on the length of and his overall record of service, which
includes both his USAR and RA service.  Therefore, it appears the
applicant's discharge accurately reflects his overall record of service.

3.  The applicant's use of illegal drugs clearly diminished the overall
quality of his service below that warranting a fully honorable discharge.
Therefore, given his record documents no acts of valor, significant
achievement, or service warranting special recognition, there is an
insufficient evidentiary basis to support granting him an HD at this time.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 September 1991, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 25 September 1994.  He failed to 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

___MKP_  __RDG __  __RCH__  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.




                                  _____Margaret K. Patterson__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060016999                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/06/14                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1991/09/26                              |
|DISCHARGE AUTHORITY     |AR 635-200 C14                          |
|DISCHARGE REASON        |Misconduct-Drug Abuse                   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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