RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 July 2007
      DOCKET NUMBER:  AR20070002928


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

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 discharge under honorable
conditions be upgraded to fully honorable.

2.  The applicant states that he was to separate upon his expiration of
term of service in June 1986.  They had a 30 to 60 to 90 day early release
program.  He had his clearance papers.  The commander said he wanted him
(the applicant) to reenlist or he would give the applicant a general
discharge.  He wanted to get out, so he cleared in one day.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 April 1986.  The application submitted in this case is dated
20 February 2007.

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 enlisted in the Regular Army on 16 June 1983 for 3 years.
 He completed basic training and advanced individual training and was
awarded military occupational specialty 16S (Man Portable Air Defense
System Crewman).

4.  On 15 February 1984, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for
wrongfully using some amount of marijuana between 13 and 22 November 1983
and between      9 and 18 January 1984.

5.  On 28 January 1986, the applicant accepted NJP under Article 15, UCMJ
for wrongfully using THC (marijuana) between 2 and 12 January 1986.

6.  On 10 February 1986, the applicant received a mental status evaluation.
 The evaluating physician found the applicant to have the mental capacity
to understand and participate in proceedings and to be mentally
responsible.

7.  On 26 March 1986, the applicant’s commander initiated action to
eliminate the applicant under the provisions of Army Regulation 635-200,
paragraph 14-12c, misconduct – commission of a serious offense, as a result
of the applicant’s three positive urinalyses for THC use.

8.  On 1 April 1986, the applicant was advised by consulting counsel of the
basis for the contemplated separation action.  He understood that he could
expect to encounter substantial prejudice in civilian life if a general
discharge under honorable conditions was issued to him.  He understood that
if he received a discharge which was less than honorable he could make
application to the Army Discharge Review Board or the ABCMR for upgrading.
It cannot be clearly determined if he elected to submit or not to submit a
statement in his own behalf. A statement is not available.

9.  On 3 April 1986, the applicant’s battery commander formally recommended
the applicant be discharged under the provisions of Army Regulation 635-
200, paragraph 14-12c.  He cited the applicant’s three positive urinalyses
for THC.  He noted that initiation of the action was required by Army
Regulation 635-200.  He also noted that the applicant’s duty performance
and military appearance was above average and he displayed a strong desire
to achieve high standards.  The battery commander stated that the
applicantt’s straying from military and socially acceptable standards was
totally inexcusable, but his past duty performance reflected highly on his
section and on his unit.  The battery commander recommended the applicant
be given a general discharge under honorable conditions.

10.  On 4 April 1986, the applicant’s battalion commander strongly
recommended approval of the recommendation to discharge the applicant.  He
stated he personally counseled the applicant regarding the recommendation
for separation made by his battery commander.  In the battalion commander’s
opinion, the applicant had no potential for further military service.  He
did not believe that a rehabilitative transfer and change in leadership
would produce a quality Soldier or be in the best interest of the Army.

11.  On 4 April 1986, the appropriate commander approved the recommendation
to separate the applicant under the provisions of Army Regulation 635-200,
chapter 14 and directed he receive a general discharge under honorable
conditions.

12.  On 30 April 1986, the applicant was discharged, in pay grade E-3,
under the provisions of Army Regulation 635-200, chapter 14.  He had
completed 2 years, 10 months, and 15 days of creditable active service and
had no lost time.

13.  There is no evidence to show the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge.

14.  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.  In pertinent part, it states that
second-time drug offenders of all grades must be processed for separation
after a second offense.

15.  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.  There is no evidence of record to support the applicant’s contention
that, after he had his clearance papers, his commander said he wanted him
(the applicant) to reenlist or he would give the applicant a general
discharge.

2.  The applicant’s separation under the provisions of Army Regulation 635-
200, chapter 14 was administratively correct and in conformance with
applicable regulations.  The applicant should have been processed for
separation upon his second drug offense.  His battery commander was
required by regulation to process him for separation upon his third drug
offense.

3.  It appears the applicant’s commanders took into consideration his
otherwise above average duty performance and military appearance in
recommending, and approving, his discharge with a characterization of
service of general under honorable conditions.  However, given his record
of three instances of misconduct consisting of illegal drug use, his record
of service was not sufficiently meritorious to warrant an upgrade of his
discharge to fully honorable.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 April 1986; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         29 April 1989.  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

__jns___  __dkh___  __lmd___  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.




                                  __John N. Slone_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002928                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070712                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19860430                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 14                       |
|DISCHARGE REASON        |A66.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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