RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 December 2007
	DOCKET NUMBER:  AR20070010316 


	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

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. William Powers

Chairperson

Mr. Michael Flynn

Member

Ms. Sherry Stone

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, his discharge characterized as under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in pertinent part, that his discharge was inequitable because it was based on one positive urinalysis during his 5 years and 10 months of active duty service.  He further states, in effect, that he has completed several education programs and earned his Bachelor of Arts Degree (BA) in Social Work and his Associate of Applied Science Degree (AAS) in Human Service Technology.  He is currently certified as a Level II Drug, Alcohol, Suicide, Death and Grief counselor and works full-time in the social work field.  He states a discharge upgrade will enable him to obtain better employment opportunities.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 6 May 1987 and copies of his BA and AAS diploma certificates dated May 2007 and December 1998 respectively.  He also provides in support of his application three copies of training certificates, which show he completed the Transition Assistance Program on 9 December 2005, the Global Career Development Facilitator Course on 4 August 2005, and Alcohol, Suicide, Death and Grief training from the University of Alaska in December 1992.   

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he enlisted on 19 June 1981 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 91A (Medical Specialist).

3.  On 4 September 1985, the applicant was assigned to Headquarters and Headquarters Company (HHC), 3rd Battalion, 47th Infantry, Fort Lewis, Washington.  On an unknown date he was transferred to HHC, 2nd Battalion, 47th Infantry at Fort Lewis, Washington. 

4.  On four separate occasions the applicant was formally counseled and the counseling sessions were formally documented on DA Form 4856 (General Counseling Form) for failure to report to his appointed place of duty.  Records show the dates of counseling were on 16 January 1987, 21 January 1987, 4 February 1987, and on 4 March 1987. 

5.  On 14 April 1987, the applicant was formally counseled for testing positive for tetrahydrocannabinol (THC) during a unit urinalysis on 7 January 1987. 

6.  On 22 April 1987, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Chapter 14 of Army Regulation 635-200 (Personnel Separations) due to misconduct - abuse of illegal drugs.  The commander further notified the applicant he was recommending the applicant receive a general discharge, under honorable conditions.  However, the separation authority may direct that the applicant's service be characterized as honorable; general, under honorable conditions; or under other than honorable conditions.

7.  The commander advised the applicant of his right to have his case considered by a board of officers (if he had 6 or more years of total active and reserve service or an under other than honorable conditions recommendation is made by the separation authority), to appear in person before a board of officers, to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge and request his case be presented before a board of officers.

8.  On 22 April 1987, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Chapter 14 of Army Regulation 635-200 for misconduct - drug abuse.  The applicant voluntarily requested personal appearance at an administrative separation board.  He requested consulting counsel to represent him throughout the separation process.  The applicant did submit at statement on his behalf.

9.  In the applicant's statement, dated 22 April 1987, he states he did not use illegal substances.  He states that he had been an outstanding Soldier for over 5 years and 9 months and that his first discharge was honorable.  In support of his statement, he provided copies of two Army Achievement Medal certificates dated 27 November 1985 and 26 July 1986, which shows he was commended for meritorious achievement in the performance of his assigned duties.  He also provided a copy of his Army Good Conduct Medal certificate, dated 18 June 1984, and his honorable discharge certificate, dated 29 December 1983.

10.  The applicant also acknowledged that, as the result of issuance of a general discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life.

11.  On 28 September 1987, the applicant's commander recommended him for discharge due to misconduct - abuse of illegal drugs.  The commander recommended a general discharge, under honorable conditions.

12.  The applicant's intermediate commander recommended that the applicant be separated due to abuse of illegal drugs and that he receive a general discharge.

13.  On 29 April 1987, the appropriate authority approved the recommendation for discharge due to misconduct - abuse of illegal drugs and directed the applicant be issued a General Discharge Certificate.  

14.  On 6 May 1987, the applicant was discharged under the provisions of Chapter 14 of Army Regulation 635-200 due to misconduct - abuse of illegal drugs.  He had completed 5 years, 10 months, and 18 days of active service characterized as under honorable conditions.  

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

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Those in pay grades below E-5 may be processed after a first drug offense and must 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 Soldier's overall record.

17.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded as it was solely based on one positive drug urinalysis in his 5 years of service.  He further contends a discharge upgrade would allow him better employment opportunities.

2.  The record of evidence shows the applicant did test positive for marijuana on one known occasion.  The applicant was advised of the effects of a general discharge and he did request appearance before a separation board.  However, the applicant did not have the minimum 6 years of service required for mandatory consideration by a separation board.  The applicant was afforded the opportunity to consult with counsel and he submitted statements with supporting documentation on his own behalf.  The applicant's record does show he did receive formal recognition for his meritorious achievement in the performance of his duties on two separate occasions by the same award approval authority.

3.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.  It is evident that the discharge authority and the applicant's chain of command apparently considered the applicant's prior service record based on the fact that he was not given the under other than honorable conditions discharge that was considered normal at that time for a chapter 14 discharge. 

4.  The applicant's post-service achievements and conduct are noted.  However, good post-service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

5.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___WP__  __MF ___  __SS  ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





_____William Powers_______
          CHAIRPERSON




INDEX

CASE ID
AR20070010316
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071211
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.
144.0100
2.

3.

4.

5.

6.