RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 September 2007
      DOCKET NUMBER:  AR20070006439


      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             |
|     |Ms. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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 discharge be upgraded to an honorable
discharge.

2.  The applicant states, in effect, that at the time of his discharge, he
was given an option to stay in active reserve or be discharged.  He adds
that he was discharged for substance abuse which was devastating and now
that he has his disease (substance abuse) under arrest, he hopes that the
Army will consider his application.

3.  The applicant provides a self-authored letter, a copy of his
Certificate of Release or Discharge from Active Duty (DD Form 214), and a
college degree certificate from Mt. San Antonio College in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s record shows that he initially enlisted in the Regular
Army and entered active duty on 1 March 1988.  He was trained in and
awarded military occupational specialty (MOS) 91A (Medical Specialist).
The highest rank he attained was private/pay grade E-2.

3.  On 14 December 1988, the applicant participated in a random urinalysis
at Fort Sam Houston, Texas.  The applicant’s laboratory results were
positive for Cocaine, identifying him as an illegal drug abuser.

4.  On 30 January 1989, the applicant was picked up for shoplifting.
Details of the incident are missing from his military records.

5.  On 8 February 1989, the applicant accepted nonjudicial punishment for
the wrongful use of Cocaine, detected by biochemical testing of a urine
sample submitted to military authorities on 12 December 1988.  His imposed
punishment for this offense was a reduction to pay grade E-1 and 14 days
extra duty.

6.  On 16 February 1989, the applicant participated in another random
urinalysis screening.  The laboratory results were positive for Cocaine,
again identifying him as an illegal drug abuser.

7.  On 15 March 1989, a mental and a physical evaluation cleared the
applicant for any administrative action deemed appropriate.

8.  On 29 March 1989, the applicant was notified by his unit commander that
separation action was being initiated on him under the provisions of
chapter
14 -12c, Army Regulation 635-200, by reason of Misconduct-Commission of a
Serious Offense, with a discharge under honorable conditions.  The reason
for the proposed action was the applicant’s wrongful use of Cocaine and for
shoplifting.

9.  On the same day, the applicant acknowledged receipt of the proposed
action against him and consulted with legal counsel.  He was advised of the
basis for the contemplated separation action, the effects of such a
separation, the rights available to him, and the effect of any action taken
by him in waiving his rights.  Subsequent to receiving this counseling, the
applicant completed his election of rights by waiving his right to have his
case considered by an administrative separation board, and declined to
submit statements in his own behalf.

10.  On 1 May 1989, the applicant was discharged under the provisions of
Army Regulation 635-200, Chapter 14 -12c by reason of misconduct - drug
abuse, with a discharge under honorable conditions (general).  The DD Form
214 he was issued at the time of his discharge confirms that he held the
rank of private/E-1 (PV1) and that he had completed a total of 1 year, 2
months, and 1 day of active military service.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) 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, and convictions by civil authorities.

12.  Paragraph 14-12c of the enlisted separations regulation provides
guidance on separation processing based on the abuse of illegal drugs,
which constitutes serious misconduct.  It states, in pertinent part, that
all Soldiers against whom charges will not be referred to a court-martial
authorized to impose a punitive discharge or against whom separation will
not be initiated under the provisions of chapter 9 or Section II, chapter
14 of this regulation, will be processed for separation under this
provision of the regulation.  "Processed for separation" means that
separation action will be initiated and processed through the chain of
command to the separation authority for appropriate action.  A discharge
under other than honorable conditions (UOTHC) is normally appropriate for a
Soldier discharged under this chapter.  However, the separation authority
may direct a GD if such is merited by the Soldier's overall record.  A
characterization of service as honorable is not authorized unless the
Soldier's record is otherwise so meritorious that any other
characterization clearly would be inappropriate.

13.  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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.

14.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within that board's
15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be
insufficient in merit.  Therefore, given the circumstances in this case and
his overall undistinguished record of service, there is insufficient
evidence to support his request at this time.

2.  The applicant’s contentions regarding his good post-service conduct and
achievements were also carefully considered.  While the applicant’s good
post-service conduct is commendable, it is not so meritorious as to warrant
an upgrade of his discharge.

3.  After carefully evaluating the evidence of record, it is determined
that the applicant’s discharge processing was conducted in accordance with
applicable law and regulations at the time and that the character of his
service is
commensurate with his overall record of military service.  The evidence of
record also confirms that all requirements of law and regulation were met
and the rights of the applicant were fully protected throughout the
separation process. Therefore, given the circumstances in this case and his
overall record of service, there is insufficient evidence to support his
request.  An upgrade of his discharge is not warranted 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WDP_  ___LMD _  ___JLP _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  ____William D. Powers_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/09/25                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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