RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 June 2007
	DOCKET NUMBER:  AR20060016977 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Linda Simmons

Chairperson

Mr. Joe Schroeder

Member

Mr. Chester Damian

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 general discharge be upgraded to honorable.  He also requests that his reenlistment (RE) code be changed.

2.  The applicant states, in effect, that he was discharged for personal use of marijuana on two occasions.  He contends that he did not intend to distribute the marijuana, just smoke it for personal use.  He points out the military had a low tolerance for drug use.

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred on 
4 December 1985.  The application submitted in this case is dated 22 November 2006.

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 limitations 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 on 6 November 1984 for a period of 4 years.  He successfully completed basic and advanced individual training in military occupational specialty 63G (fuel and electronic systems repairer).

4.  On 7 June 1985, the applicant was apprehended by civil authorities and charged with possession of marijuana tea.  He was found guilty and received a $250 fine with a suspended sentence on 2 July 1985.  

5.  On 19 August 1985, a bar to reenlistment was imposed against the applicant.

6.  On 27 August 1985, nonjudicial punishment was imposed against the applicant for using marijuana.  His punishment consisted of a forfeiture of pay, restriction, and extra duty. 

7.  On 25 October 1985, nonjudicial punishment was imposed against the applicant for using marijuana.  His punishment consisted of a forfeiture of pay (suspended), restriction, and extra duty.  

8.  On 19 November 1985, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14 for misconduct (drug abuse).  The unit commander cited the applicant’s two nonjudicial punishments for marijuana use. 

9.  On 20 November 1985, the applicant consulted with counsel, waived consideration of his case by a board of officers and acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued. Also, he elected not to submit a statement on his own behalf.  

10.  On 22 November 1985, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

11.  Accordingly, the applicant was discharged in pay grade E-1 on 4 December 1985 with a general discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12d, for misconduct (drug abuse).  He had served 
1 year and 29 days of total active service.  Item 27 (Reenlistment Code) on his DD Form 214 shows the entry, "RE-3, 3C." 

12.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  This regulation states, in pertinent part, that drug offenders in grades E1 to E9 would be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the member's overall record.

14.  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.  

15.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

16.  RE-3 at the time applied to persons not qualified for continued Army service, but the disqualification was waivable.  Army Regulation 601-210, in effect at the time, stated in pertinent part, that a discharge by reason of misconduct was a waivable disqualification.

17.  RE-3C at the time applied to persons who completed over four months of service who did not meet the basic eligibility pay grade requirements of Army Regulation 601-280, chapter 2, or who had been denied reenlistment under the Qualitative Retention Process under Army Regulation 635-200, chapter 4.

18.  Army Regulation 601-280 (Army Reenlistment Program), in effect at the time, prescribed eligibility criteria and options available in the Army Reenlistment Program.  Chapter 2 of the regulation states, in pertinent part, that personnel in grades E-2 and below, regardless of years of service, are not authorized reenlistment. 

19.  RE-1 at the time applied to persons completing an initial term of active service who were fully qualified when last separated.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record clearly shows the applicant was a second-time drug offender discharged for misconduct due to drug abuse.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  The RE-3 and RE 3C entries shown in item 27 on the applicant's DD Form 214 are correct and were applied in accordance with the applicable regulations.  

5.  Records show the applicant should have discovered the alleged errors now under consideration on 4 December 1985; therefore, the time for the applicant to file a request for correction of any error expired on 3 December 1988.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

LS_____  __JS_____  __CD___  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.




____Linda Simmons______
          CHAIRPERSON




INDEX

CASE ID
AR20060016977
SUFFIX

RECON

DATE BOARDED
20070605
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19851204
DISCHARGE AUTHORITY
AR 635-200 Chapter 14  
DISCHARGE REASON
Misconduct (drug abuse)
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.
100.0300
3.

4.

5.

6.