RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 January 2008
	DOCKET NUMBER:  AR20070012021 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. James Vick

Chairperson

Mr. Thomas Ray

Member

Mr. Jeffrey Redmann

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 general discharge, under honorable conditions, be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his general discharge should be upgraded due to his merits for retention and that he wishes to reenlist in the Active Army.  The decision to separate him was not made until he voluntarily agreed to undergo a polygraph test.  The results were not admissible in either an administrative or criminal proceeding.  As evidenced by his statements and the statements of others, he did not knowingly use marijuana or any other illegal drug.  He states that because his separation was not initiated until he failed the polygraph, it appears that the decision to discharge him 2 months before his ETS (expiration term of service) was based on a procedure that contravened Army regulations.  Had he passed the polygraph, he would not have been separated.  

3.  The applicant states that he has already served his punishment for having extended his emergency leave without authorization.  He was AWOL (absent without leave) because his mother underwent emergency surgery.  He received only one Article 15, under the Uniform Code of Military Justice (UCMJ), for this and that the DA Form 2627 (Record of Proceedings Under Article 13, UCMJ) would be discarded once he PCS’d (Permanent Change of Station) or ETS’d from Fort Sill.  It seems unfair that he should be separated for something that would not be memorialized in his Official Military Personnel File (OMPF).

4.  The applicant also states that during his tenure at the PSB (Personnel Services Branch), he was assigned to leadership positions and excelled.  He was charged with several details and entrusted with military vehicles without any direct supervision.  He performed his duties in an exemplary fashion.

5.  The applicant provides no additional documentation in support of his request.

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 record shows he enlisted in the Regular Army on 1 August 1998, for 3 years, with an established ETS of 31 July 2001.  He successfully completed both basic combat training and advanced individual training at Fort Knox, Kentucky.  On completion of his training, he was awarded the military occupational specialty (MOS) 19K (Armor Crewman).  He was advanced to pay grade E-3 on 14 September 1999.

3.  On 23 January 2001, the applicant was punished under Article 15, UCMJ, for being AWOL from 19 September 2000 to 29 November 2000.  His punishment consisted of extra duty for 30 days. 

4.  On 21 February 2001, the applicant tested positive for marijuana.

5.  On 9 March 2000, the applicant's commander advised the applicant he was taking action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct-commission of a serious offense.  The commander based his recommendation on the applicant’s wrongful use of marijuana and AWOL from 19 September 2000 to 29 November 2000.  The applicant was informed that the intermediate commander and separation authority were not bound by the commander’s recommendation.  The separation authority could direct that his service be characterized as honorable or general, under honorable conditions, or he could direct his retention on active duty. 

6.  On 12 March 2001, the applicant underwent a mental status evaluation which revealed a fully oriented, alert individual, whose behavior was normal.  His mood was level, his thinking process was clear, his thought content was normal, and his memory was good.  The impression section of the evaluation form indicated that he had no significant mental illness.  It was determined that he was mentally responsible and could distinguish right from wrong and adhere to the right.  He possessed sufficient mental capacity to understand and participate in board proceedings.  He met the retentions requirements of Army Regulation 40-501, chapter 3.  


7.  On 13 April 2001, after consulting with counsel, the applicant waived his rights and elected to submit a statement on his own behalf.  In this statement, the applicant used the same words as he now uses in his request for an upgrade of his discharge.

8.  On 16 April 2001, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, before his ETS, due to misconduct-commission of a serious offense.  

9.  On 17 April 2001, the separation authority approved the recommendation for the applicant's discharge and directed that he be issued a General Discharge Certificate.  

10.  The applicant was discharged on 20 April 2001, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct, in pay grade E-3.  He had completed 2 years, 6 months, and 8 days of creditable service and had a total of 72 days lost due to AWOL.

11.  On 1 February 2002, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.  In the proceedings, the ADRB indicated that the applicant's command determined that his 72-day AWOL and his use of illegal drugs were serious offenses and that his misconduct warranted separation from the Army.  The ADRB noted that the applicant's use of marijuana was authenticated through a valid urinalysis test on 21 February 2001, and there was no evidence in the record that he was identified as using illegal drugs through a polygraph test.  

12.  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, and convictions by civil authorities.  Action will be taken to separate a member for 
misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

13.  Paragraph 14-12c(2) provides for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs.  



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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant tested positive for marijuana  and received an Article 15, under the UCMJ, for his being AWOL from 19 September 2000 to 29 November 2000.   

2.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for misconduct-commission of a serious offense, and he was issued a general discharge, under honorable conditions.

3.  The applicant has provided no evidence to show that his discharge was unjust.  He also has not provided any evidence to mitigate the character of his discharge.

4.  The applicant contends that the decision to separate him was not made until he voluntarily agreed to undergo a polygraph test; and that he did not knowingly use marijuana or any other illegal drug.  The ADRB proceedings noted that his use of marijuana was authenticated through a valid urinalysis test on 21 February 2001, and there was no evidence in the record that he was identified as using illegal drugs through a polygraph test.  

5.  The applicant states that the decision to discharge him 2 months before his ETS was based on a procedure that contravened Army regulations.  The evidence clearly shows that his command determined that his illegal drug use and AWOL were serious offenses and that this conduct warranted separation from the Army.

6.  The applicant's additional contentions were considered; however, they do not support an upgrade of his general discharge.



7.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to honorable.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JV___  __TR____  ___JR __  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.




_____James Vick_________________
          CHAIRPERSON




INDEX

CASE ID
AR20070012021
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080122
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
20 April 2001
DISCHARGE AUTHORITY
AR 635-200, chapter 14
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.