RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 October 2007
      DOCKET NUMBER:  AR20070007310


      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:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. David W. Tucker               |     |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, promotion to the pay grade of E-9
and
16 years back pay.

2.  The applicant states, in effect, he was discharged based on a
urinalysis test that was erroneous and improperly handled.  He claims he
showed where the chain of custody was broken and he took a polygraph
examination at his own expense, which he passed with no deception noted.
He states that his chain of command was supportive and was convinced that
an error had been made in the test; however, he was eventually discharged
anyway.  As a result of the discharge, he lost his house, his car, and the
respect of his comrades and friends.  He also states that he attempted to
correct this error by writing to the President and others, but all were
unwilling to help him.

3.  The applicant further states that the Army Discharge Review Board
(ADRB) considered everything and decided a mistake had been made, but
refused to admit the real mistake, which was the urinalysis test.  He has
made it back into the Army based on going through the whole process, and
reentered in the pay grade E-5 even though he was within a month of pinning
on E-7.  He states that he has lost so much and is requesting help in
getting compensated for the Army’s mistake.  He requests he be promoted to
the pay grade of E-9 and receive a class date to the Sergeants Major
Academy and his date of rank should be established to coincide with the
date of his latest enlistment, which would give him the option of retiring
if he chooses to.  He also requests monetary compensation at the amount he
would have earned from the time the Army discharged him with consideration
of what his progression in rank and pay would have been had he not been
discharged.

4.  The applicant provides a self-authored statement and ADRB Case Report
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.  As of the date of his application to the Board, the applicant was
serving on active duty, in the rank of sergeant, and assigned to Iraq.

3.  On 2 February 1976, the applicant initially enlisted in the Regular
Army and entered active duty.  He was trained in and awarded military
occupational specialty (MOS) 31C (Radio Operator).  His record shows he was
promoted to the rank of staff sergeant/E-6 (SSG/E-6) on 5 September 1984.

4.  A Urinalysis Custody and Report Record (DA Form 5180-R), dated 11 July
1987, shows the applicant's sample tested positive for THC (Marijuana).

5.  On 26 October 1987, the unit commander notified the applicant that he
was initiating action to separate him under the provisions of Paragraph 14-
12c, Army Regulation 635-200, for the commission of a serious offense.  The
commander stated the basis for the action was his abuse of illegal drugs,
as evidenced by the applicant's positive urinalysis for THC.

6.  The applicant consulted with legal counsel and was advised of the basis
for the contemplated separation action and its effects, of the rights
available to him and the effect of a waiver of those rights.  Subsequent to
this counseling, the applicant elected to have his case considered by a
personal appearance before an administrative separation board and he
requested consulting counsel.

7.  On 19 February 1988, an administrative separation board convened to
consider the applicant's case.  The applicant was present with his counsel.
After carefully considering the evidence before it, the administrative
separation board, by majority vote, found the preponderance of the evidence
established that the applicant had used illegal drugs, and it recommended
the applicant's separation for misconduct with a general, under honorable
conditions discharge (GD).

8.  On 1 April 1988, the applicant's defense counsel submitted a memorandum
for the commanding general (CG) of Fort Sheridan regarding the
administrative separation board results on the applicant.  Defense counsel
stated that because of an incorrect evidentiary ruling by the president of
the board, the other two board members were not told of a polygraph, the
results of which indicated that the applicant was truthful when he denied
using a controlled substance.  Counsel
indicated that the board president said it was a close decision that took a
long time to decide and that there had been a dissenting vote.  Counsel
claimed that had the evidence of the polygraph been admitted, the decision
likely would have been in the applicant's favor.

9.  On 19 April 1988, the Brigade Judge Advocate (JA) prepared a memorandum
for the CG, Fort Sheridan addressing the polygraph issue raised by the
applicant's defense counsel.  He stated that the administrative separation
board president had ample authority for the ruling regarding the polygraph
test in question, and further indicated that one fact not presented at the
board was that early in the chapter process, the applicant declined the
opportunity for a Government polygraph.  The JA further indicated that
defense counsel also argued that the applicant was supported by the entire
chain of command, which was not entirely true.  He stated the Government
called two witnesses, the Army Drug Control Officer, who testified that the
urinalysis test was correctly administered at the unit level; and the
sergeant major, whose testimony was adverse to the applicant.

10.  On 2 May 1988, the separation authority, after reviewing the
administrative separation board proceedings and the matters submitted in
appeal, approved the findings and recommendations of the board, and
directed the applicant be discharged under the provisions of Paragraph 14-
12c, Army Regulation 635-200, for misconduct-abuse of illegal drugs, and
that he be issued a GD.  On 20 May 1988, the applicant was discharged
accordingly.

11.  On 3 July 2002, the ADRB after carefully considering the applicant's
case determined his discharge was inequitable based on his overall record
of service. Although the ADRB voted to upgrade the characterization of the
applicant's service to fully honorable and to change the authority and
reason for his separation to Paragraph 5-3, Army Regulation 635-200, by
reason of Secretarial Authority, it also found the discharge was proper and
specified that it did not condone the applicant's misconduct.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 of the regulation deals with
separation for various types of misconduct, which includes drug abuse, and
provides that individuals identified as drug abusers may be separated prior
to their normal expiration of term of service. Individuals in pay grades E-
5 and above must be processed for separation upon discovery of a drug
offense.  Those in pay grades below E-5 may also be processed after a first
drug offense and must be processed for separation after a second offense.
The issuance of a discharge under other than honorable conditions is
normally considered appropriate.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge was erroneous and that he
should be promoted to the pay grade of E-9 and provided 16 years of back
pay and allowances was carefully considered.  However, there is
insufficient evidence to support granting the requested relief.

2.  The applicant's claim that a polygraph test that exonerated him was not
considered during the separation process was also considered; however, the
evidence of record confirms the president of the administrative separation
board excluded the test on solid legal grounds and this fact was confirmed
by the separation authority and his consulting JA.  Further, as pointed out
by the JA at the time, the applicant had declined the opportunity to
undergo a Government sponsored polygraph prior to obtaining his own test
through an unofficial source.

3.  The ADRB decision to upgrade the character of the applicant's service
and to change the authority and reason for his separation was based on his
overall record of service on equity grounds, and allowed his reentry into
service.  The ADRB decision does not call into question the validity of the
original separation action.  The evidence of record clearly shows the
applicant's separation processing was accomplished in accordance with the
applicable regulation.  All requirements of law and regulation were met,
and the rights of the applicant were fully protected throughout the
separation process.  As a result, there is an insufficient evidentiary
basis to support granting the requested relief.

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

__JS  ___  __JTM __  __DWT__  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.




                                  _____John Slone________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070007310                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/10/23                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1988/05/20                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Sec Auth                                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Mitrano                             |
|ISSUES         1.       |128.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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