RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           24 February 2004
	DOCKET NUMBER:   AR2003090698

	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	
	Ms. Carolyn Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Lawrence Foster		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 general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that both the individual taking the urine specimen and his first sergeant hated him.  The applicant further states that he would not have put himself or his career in jeopardy by using illegal drugs. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) which he states shows how dedicated he was to the Army.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 11 July 1988.  The application submitted in this case is dated 8 April 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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

3.  The applicant's service records show he had prior honorable active and inactive service from 6 March 1974 through 5 March 1976.  

4.  The applicant's service records also show that, on 24 April 1978, he enlisted in the United States Army Reserve (USAR) for a period of 4 years and in the grade of private first class/E-3.  He was honorably discharged on 17 July 1978 to enlist in the Regular Army.

5.  On 18 July 1978, the applicant enlisted in the Regular Army for 4 years.  He enlisted for the United States Army Special Unit Enlistment Option and training in military occupational specialty (MOS) 16R (Vulcan Crewmember).  Following advanced individual training, the applicant was awarded MOS 16R and was assigned to Germany as his first permanent duty station.

6.  On 8 August 1985, the applicant reenlisted for 6 years and the Continental United States (CONUS) Reenlistment Option (Fort Bliss, Texas).  He also received a bonus for reenlisting in his primary MOS 16R.

7.  In December 1987, the applicant tested positive for the use of marijuana during a random unit drug screening.

8.  On 18 April 1988, the unit commander notified the applicant that he was initiating separation action under the provisions of chapter 14, Army Regulation 635-200, for misconduct – abuse of illegal drugs.  He was advised of his rights.

9.  On 19 April 1988, the applicant acknowledged notification, consulted legal counsel, requested a hearing before a board of officers, and did not submit a statement in his own behalf.

10.  On 17 May 1988, the applicant was ordered to appear before a board of officers and was again advised of his rights.

11.  On 16 June 1988, a board of officers convened at Fort Bliss, Texas to determine if the applicant should be discharged under the provisions of chapter 14, Army Regulation 635-200 for commission of a serious offense.  The applicant appeared with counsel.

12.  On 22 June 1988, the board recommended that the applicant be separated from the service with a GD.

13.  On 22 June 1988, having reviewed the summary of the board proceedings, the Acting Chief, Civil and Administrative Law Division, Office of the Staff Judge Advocate, found the proceedings to be legally sufficient.

14.  On 27 June 1988, the appropriate authority approved the board recommendations and separation with a GD.  Accordingly, on 11 July 1988, the applicant was discharged with a GD under the provisions of chapter 14, Army Regulation 635-200.

15.  On 22 April 1996, the Army Discharge Review Board (ADRB) reviewed the applicant's records and found that his characterization of service was proper and equitable.  However, the ADRB found the reason for discharge to be inequitable and modified it under current standards from "misconduct – abuse of illegal drugs" to "misconduct." 

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter l4 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's 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.

2.  The applicant's use of illegal drugs diminished the quality of his service below that meriting a fully honorable discharge.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated his misconduct.

3.  Although the ADRB changed the applicant's reason for discharge under current standards, the ADRB concluded that his characterization of service was proper and equitable.  

4.  The Board concurs with the findings and conclusions of the ADRB and presumes that the applicant's administrative separation was accomplished in compliance with applicable regulations.  There is no indication of procedural errors by the ADRB which would tend to have substantially jeopardized the applicant's rights.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 April 1996; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 21 April 1999.  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

___rvo__  __mvt___  ___lf___  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.

		Raymond V. O'Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003090698	
SUFFIX		
RECON		
DATE BOARDED	20040224	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19880711	
DISCHARGE AUTHORITY	AR 635-200, Chap 14. . . . .  	
DISCHARGE REASON	A60.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.9201	
2.		
3.		
4.		
5.		
6.