RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            13 November 2003  
	DOCKET NUMBER:   AR2003091249

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Eloise C. Prendergast		Member	
	Mr. Ronald E. Blakely		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 her discharge under honorable conditions be upgraded to fully honorable.

2.  The applicant states that she has wanted her discharge changed for many years now.  She is a decent person, hard working and honest.  She does not do drugs.  She would be honored to have her discharge changed to honorable so she could pursue a career in the Air National Guard.

3.  The applicant provides as supporting evidence two character references, one dated 1 February 2002 and the other dated 17 January 2002; her college transcripts; her application for and acceptance to graduate school; her business college diploma dated May 1988; and her 2002 annual performance appraisal.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 12 March 1985.  The application submitted in this case is dated 9 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 (AR 15-185, paragraph 2-8) effectively shortens that filing period, has determined that the 3-year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the Board 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 enlisted in the Regular Army on 22 November 1983.  She completed basic training and advanced individual training and was awarded military occupational specialty 71L (Administrative Specialist).

4.  On 4 January 1985, the applicant was notified that her commander intended to initiate action to separate her for misconduct – abuse of illegal drugs.  The proposed action was based on two positive urinalysis test results for marijuana.

5.  On 15 January 1985, the applicant underwent a mental status evaluation.  She was found to have the mental capacity to understand and participate in proceedings, to be mentally responsible, and to meet the retention requirements of Army Regulation 40-5012, chapter 3.

6.  On 15 January 1985, the applicant completed a separation physical and was found qualified for separation.

7.  On 30 January 1985, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  She submitted a statement in her own behalf.  The applicant stated that she believed she should be retained because she was a hard worker, a good soldier, and a lot more mature than when she was in Headquarters and Headquarters Detachment, 1st Medical Group.  Since arriving in her new unit she was doing better than ever.  She worked hard for a unit that worked hard for her.  She wanted to prove to the Army that she could do everything possible to make herself a useful soldier.

8.  In February 1985, the applicant's company commander recommended she be retained on active duty.  On 6 February 1985, her battalion commander recommended separation action be suspended.

9.  On 14 February 1985, the group commander nonconcurred with the company and battalion commanders' recommendations.  He stated the applicant's current duty performance and the fact that results from a third urinalysis had not yet been received had no bearing on the separation.  The applicant was fully aware that use of illegal substances was contrary to both civil and military law but she persisted.  He recommended she be immediately separated.

10.  On 27 February 1985, the approval authority approved the recommendation to separate the applicant and directed she be issued a General Discharge Certificate.

11.  On 12 March 1985, the applicant was discharged, in pay grade E-3, with a general discharge under honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct – drug abuse.  She had competed 1 year, 3 months, and 20 days of creditable active service and had no lost time.

12.  On 14 July 1986, the ADRB denied the applicant's request to upgrade her discharge.

13.  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 and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  Paragraph 14-12c states that abuse of illegal drugs is serious misconduct.  Second-time drug offenders, grades E-1 – E-9, must be processed for separation upon discovery of a drug offense.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.  

14.  Army Regulation 635-200 states, in pertinent part, that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’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.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.

2.  The characterization of the applicant's discharge as general was appropriate based on her record of two urinalysis tests positive for marijuana even though there is no record of any other disciplinary actions.

3.  The applicant's post-service conduct is noted but does not form a basis on which to change the character of her service at the time she separated.  

4.  Records show the applicant should have discovered the error or injustice now under consideration on 14 July 1986; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 July 1989.  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

__aao___  __ecp___  __reb___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested and, therefore, it would not 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.  

		__Arthur A. Omartian 
		        CHAIRPERSON

INDEX

CASE ID	AR2003091249	
SUFFIX		
RECON		
DATE BOARDED	20031113	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19850312	
DISCHARGE AUTHORITY	AR 635-200, ch 14	
DISCHARGE REASON	A66	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.