RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  7 August 2007
	DOCKET NUMBER:  AR20070004358 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Ernestine I. Fields 

Member

Mr. Randolph J. Fleming

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, that his discharge under other than honorable conditions be upgraded to honorable. 

2.  The applicant states, in effect, that his commander was prejudiced against Latino and Black persons, and especially against Puerto Ricans.  He requested a transfer to another battalion, but was refused.   The commander told him that he would see to it that he was finished in the military.  The applicant further states that he was enrolled in the drug rehabilitation program and passed it, but then his commander said that a second positive urinalysis occurred while in the drug program.  Even though his lawyer could not acquire any evidence of this positive test, the command still processed him for an administrative discharge for misconduct due to drug use, and not for drug rehabilitation failure. The applicant requested an appeal while still in the Federal Republic of Germany, but was told that he could do that after returning to the United States.  When he arrived at Fort Dix, New Jersey, he was told that his appeal should have been made before leaving Europe.

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214) and a certificate of no penal record.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 17 January 1986, the date of his discharge.  The application submitted in this case is dated 6 March 2007.

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.  On 22 August 1978, the applicant enlisted in the Regular Army for 3 years.   He completed his initial training and was awarded military occupational specialty (MOS) 11B1O (Infantryman).  

4.  In 1980, the applicant successfully completed the 3-week Jungle Expert Course at Fort Sherman, Panama.  In 1981, he completed the Primary Noncommissioned Officer Course at Fort Lewis, Washington.

5.  On 30 June 1980, the applicant was promoted to specialist four, pay grade E4.

6.  On 6 February 1981, the applicant was awarded MOS 11H1O (Heavy 
Anti-Armor Weapon Crewman).

7.  On 19 May 1981, the applicant was assigned for duty with the 1st Battalion, 51st Infantry Regiment, in the Federal Republic of Germany.

8.  On 7 December 1984, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongful use of marijuana.  The punishment included reduction to private, pay grade E2, a forfeiture of $334.00 pay per month for 1 month, and 30 days restriction and extra duty (suspended).

9.  On 16 July 1985, the applicant accepted NJP for wrongful use of marijuana.  The punishment included reduction to private, pay grade E1, a forfeiture of $310.00 pay per month for 1 month, and 45 days extra duty and restriction (suspended). 

10.  On 4 September 1985, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for commission of a serious offense (use of illegal drugs).   The applicant completed the Track I phase of the drug program.  However, his second use of drugs showed a great apathy with regard to the use of drugs.  The commander recommended waiver of any further effort to rehabilitate him as it would not be in the best interest of the Army and it would not produce a quality Soldier. 

11.  On 4 September 1985, the applicant consulted with counsel concerning his rights.  He requested consideration of his case by a board of officers; to appear before such a board; and to be represented by military counsel.  He also elected not to submit a statement in his own behalf.

12.  On 8 September 1985, the applicant’s commander recommended that he be barred from reenlistment based on his wrongful use of marijuana.  The commander cited the two NJP and seven counseling statements given to the applicant between 1 January and 1 July 1985 for poor attitude and for two positive urinalysis tests.  On 9 September 1985, the appropriate authority approved the bar to reenlistment.  The applicant was provided a 15-day period in which to submit an appeal.  However, there is no evidence that he appealed.

13.  On 19 September 1985, a medical examination found him to be qualified for separation with a physical profile of 1.1.1.2.1.1.  At a mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

14.  On 13 November 1985, a board of officers convened to consider the applicant for elimination under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  The applicant and his counsel were present.  The company commander was sworn in as a witness.  He stated, in effect, that he would eliminate any Soldier who tested positive for drug use.  The defense called the applicant, who testified that he had been in the Army for 7 years and had served in several different infantry units.  He further stated that he had received several positive written counseling statements for his performance in the field and for promotion recommendation to sergeant, pay grade E5.  He contended that he wanted to make a career of the Army and believed he could overcome the two NJP’s.  With regard to the second positive urinalysis, he said that he asked the company commander for a retest but it was denied due to a lack of time.  He stated that he did not know why he tested positive because he did not smoke marijuana.  The applicant’s platoon leader testified that while his attitude may have declined, his work performance was still outstanding.  The platoon leader further stated that the applicant was a good Soldier and could still be an asset to the Army.  The applicant’s section leader and squad leader also testified, providing essentially the same comments as his platoon leader.  The board recalled the company commander who testified that he could not recall of any prejudice in the unit after the applicant’s positive urinalysis.  He also stated that if a Soldier wants a retest of his urinalysis, the sample is frozen.  However, in this case, it was his understanding that the sample had been destroyed.  The board recommended that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  

15.  On 3 December 1985, the applicant’s trial defense requested that the board’s recommendation be disapproved in part and that the applicant be either retained on active duty or issued a General Discharge Certificate.   The defense counsel based his request on his understanding that the board required two votes.  The first vote resulted in recommendations by two board members to retain the applicant; by one board member to issue a General Discharge Certificate; and by two board members to separate him under other than honorable conditions.  The majority of the board voted to either retain or discharge the applicant under honorable conditions.  The second board vote resulted in a majority of the board voting for a separation with the issuance of a discharge under other than honorable conditions.  Counsel argued that the applicant should have been given the benefit of the initial vote.  He further argued that the overall record of this Soldier did not warrant a separation under other than honorable conditions and asked the convening authority to review the testimony of the defense witnesses.  He further requested that the convening authority disapprove the recommendation of the board of officers and suspend the execution of the administrative discharge for 6 months to give the applicant an opportunity to further demonstrate his potential for exemplary service warranting retention in the United States Army. 

16.  On 30 December 1985, the Staff Judge Advocate, recommended that the defense request be denied and that the convening authority approve the board of officer’s recommendation.  The Staff Judge Advocate stated that regulations did not provide for the suspending of the execution of the administrative discharge based on a close vote.  He further stated that the convening authority did have the authority to suspend execution of the separation when a highly deserving Soldier’s record showed sufficient potential for full effective duty.  However, in this case the evidence showed that the Soldier had used drugs twice.  It also showed that he was a slightly above average Soldier and that several of his superiors indicated that they would want him to serve with them again.  The evidence did not support the finding that he was a highly deserving Soldier with sufficient potential for full effective duty.   

17.  On 15 January 1986, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

18.  Accordingly, on 17 January 1986, the applicant was discharged under other than honorable conditions.  He had completed 9 years, 4 months, and 26 days of creditable active service.

19.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.




20.  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 that could result in a punitive discharge, 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.

21.   Under the UCMJ, the maximum punishment allowed for wrongful use of marijuana a dishonorable discharge and confinement for 5 years.


DISCUSSION AND CONCLUSIONS:

1.  The record shows two offenses for the wrongful use of marijuana.  Clearly, this qualifies as the commission of serious offenses.

2.  There is no evidence of record, and the applicant has not provided any evidence to substantiate his contention that the company commander was prejudiced against him.  

3.  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.

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

5.  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.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 January 1986; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
16 January 1989.  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

_RJF ___  _EIF___  __LDS____  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 D. Simmons_
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.