RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            11 MARCH 2004                  
	DOCKET NUMBER:   AR2003094310

	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. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Mae M. Bullock		Member	
	Mr. Patrick H. McGann, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	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 under other than honorable conditions be upgraded to honorable.

2.  The applicant states that he was informed that his character of service would be upgraded six months after his discharge.  His under other than honorable conditions discharge affects his benefits. 

3.  The applicant provides no evidence to support his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 27 June 1984.  The application submitted in this case is dated 9 July 2003.  

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 limitation 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 Army for four years on 1 August 1978, completed training, and in November 1978 was assigned to a signal company in Germany.  He was promoted to pay grade E-4 in December 1979.  

4.  On 16 September 1981 the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for failure to secure an arms room and for failure to go to his place of duty.

5.  The applicant returned to the United States and in January 1982 was assigned to Fort Bragg, North Carolina.  On 3 March 1982 he was awarded the Army Good Conduct Medal for the period 1 August 1978 to 31 July 1981.  On    16 July 1982 he reenlisted for three years.   In September of that year he was reassigned to Fort Leonard Wood, Missouri for training in an engineer specialty.  He completed the training and in November 1982 was assigned to an engineer company at Fort Polk, Louisiana.  In May 1983 he was promoted to sergeant.

6.  Two counseling statements completed in the latter months of 1983 show that the applicant's performance of duty was excellent; however, he was counseled on 19 October 1983 for leaving a platoon container and a trailer unsecure, on     4 October 1983 for nonpayment of a debt, on 29 September 1983 for missing formation, and on 12 September 1983 for failure to lay out equipment. 
7.  On 2 November 1983 the applicant received nonjudicial  punishment for dereliction in the performance of his duty, and for failure to go to his place of duty.

8.  In February 1984 the applicant underwent drug testing.  The results showed that he tested positive for marijuana.

9.  On 6 April 1984 the applicant's commanding officer notified the applicant that he intended to initiate action to separate him from the Army for misconduct, abuse of illegal drugs, under the provisions of Army Regulation 635-200,    chapter 14.  The applicant consulted with counsel and stated that he had been advised of the basis for the contemplated action, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights.  He waived consideration of his case by a board of officers and declined to submit a statement in his own behalf.  He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive.    

10.  On 21 May 1984, before a summary court-martial which convened at Fort Polk, the applicant was arraigned, tried, and pled guilty to wrongfully using marijuana.
   
11.  On 30 May 1984 the applicant's commanding officer recommended to the separation authority that the applicant be discharged.  On 17 June 1984 the separation authority approved the recommendation and directed that the applicant receive a Discharge Certificate Under Other Than Honorable Conditions.  The applicant was discharged on 27 June 1984.     

12.  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, conviction by civil authorities, desertion or absence without leave.  Abuse of illegal drugs is serious misconduct.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An under other than honorable conditions certificate is normally appropriate for a member discharged for misconduct.  
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Department of Veterans Affairs benefits.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

3.  There is no evidence and the applicant has not provided any, to support his contention that he was informed that his character of service would be upgraded six months after his discharge.  Nevertheless, the Army has no such policy regarding upgrading a Soldier's discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.    

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 27 June 1984; therefore, the time for the applicant to file a request for correction of any error or injustice expired on         26 June 1987.  However, 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JNS __  __MMB__  __PHM__  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	AR2003094310	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040311	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.