IN THE CASE OF:	

		BOARD DATE:	
		DOCKET NUMBER:  AR20070012092 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his under other than honorable conditions discharge be upgraded to honorable or at least general, under honorable conditions.

2.  The applicant states, in effect, that this incident was his first offense.  He was an outstanding Soldier.  He injured his knee during his second tour and pain medications were not working.  At first he drank alcohol on weekends during his off-duty time to help with the pain and at Fort Ord, California, he was introduced to marijuana and due to the pain he finally broke down and tried it.  During this time, the military started its zero tolerance program.  A battalion-wide urinalysis was performed and he of course tested positive.  He wanted to stay in the Army but his new first sergeant who had just transferred to the unit led by example and he had zero tolerance and he wanted him out.  From this he was discharged with an under other than honorable conditions discharge.

3.  The applicant claims that he was told that after two years he could apply and have his discharge upgraded.  The applicant states he regrets he did not do this sooner.  He adds that he should have but he was too ashamed and didn’t want to let his family know of the mistake he made.  He learned from his mistake and has never done anything like this again.  He found a wonderful woman, got married in 1994, and has two wonderful children of whom they are very proud.  He worked hard and got his electrical contractor’s license.  He has led an upstanding life and leads by example.  He is a very patriotic person and has transferred this patriotism to his family.

4.  The applicant asks that the Board look at his outstanding service with his awards and the fact that he was an E-4 in a squad leader's position at Fort Ord.  This was his first offense and he was put out as an example.  The applicant summarizes his statement by saying he would like to have his discharge upgraded based on his outstanding performance prior to his first mistake but if the Board needs anything to support the good life and outstanding citizen that he has become, to please let him know.

5.  In support of his request, the applicant provided a copy of a letter, Subject:  Letter of Commendation, he received from the Command Sergeant Major, Headquarters, 3rd Infantry Division, on 26 October 1981; and a letter, Subject:  Letter of Appreciation, he received from the First Sergeant, Company Support Company, 1st Battalion, 15th Infantry, on 4 March 1982.

6.  In a follow-up letter in response to the correction of administrative error, the applicant, through counsel, submitted a copy of two DD Forms 214, Certificate of Release or Discharge from Active Duty.  One of the DD Forms 214 was issued to the applicant on 1 April 1983 and the second was issued to him on 12 September 1991.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel has for the most part remained silent and it appears she has acted primarily as a guide in formulating the applicant’s request for, in effect, an upgrade of the applicant's under other than honorable conditions discharge.

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 evidence shows the applicant enlisted in the Regular Army on 2 April 1980.  He underwent basic combat and advanced individual training and was awarded the military occupational specialty (MOS), Heavy Anti-Armor Weapons Infantryman (11H).

3.  On 18 October 1982, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully having some amount of marijuana in his possession.  The imposed punishment was a reduction in pay grade from E-4 to E-3 (suspended for two months) and a forfeiture of $250.00.  The applicant did not appeal the punishment that was imposed.

4.  The applicant was honorably released from active duty in the rank and pay grade of Specialist Four, E-4, on 1 April 1983, under the provisions of AR 
635-200, chapter 4.  On the date of his discharge, the applicant had completed 3 years active military service with no time lost.

5.  The evidence shows the applicant enlisted in the Regular Army on 18 April 1990.  The applicant underwent one station unit training at Fort Benning, Georgia, and was subsequently reassigned to Fort Ord for duty in the MOS 11B, Infantryman.

6.  A DA Form 5180-R, Urinalysis Custody and Report Record, dated 1 May 1991 shows the applicant underwent urinalysis testing on 15 April 1991 and on 1 May 1991 his urine sample was certified as being positive for the use of marijuana.

7.  On 29 May 1991, the applicant was counseled, by his noncommissioned officer in charge (NCOIC), about his having been found positive for the use of marijuana as a result of a unit urinalysis which was conducted on 15 April 1991. The applicant's NCOIC advised him that his conduct was prejudicial to good order and discipline and constituted serious misconduct and that it was his intent to recommend his separation from the Army under the provisions of Army Regulation 635-200, Chapter 14.

8.  On 10 June 1991, the applicant received nonjudicial punishment under the provisions of Article 15 of the UCMJ for wrongfully using marijuana.  The imposed punishment was a reduction in pay grade from E-3 to E-1, forfeiture of $376.00 pay per month for two months, and extra duty and restriction for 45 days.  The applicant did not appeal the punishment that was imposed.



9.  The evidence of record shows that on 29 July 1991, his unit commander notified the applicant that he was recommending that he be discharged from the Army under the provision of Army Regulation 635-200, chapter 14, because he had received a field grade Article 15 for the wrongful use of marijuana.  He was notified the least favorable characterization of service he could receive was an under other than honorable conditions discharge.  The applicant was advised of the rights that were available to him.  The applicant acknowledged the letter of notification of his proposed separation on 29 July 1991.

10.  On 29 July 1991, the applicant consulted with counsel and was advised of the basis for the contemplated action to separate him for a serious offense and the nature of his rights under the UCMJ.  The applicant waived appearance before and consideration of his case by an administrative separation board. The applicant did opt to submit a statement in his own behalf.

11.  In his statement, the applicant stated he wished to highlight his previous enlistment record and also to point out that his record was outstanding up until his previous injury.  He had continued to perform his duty to the fullest extent as allowed by his injury.  Not being able to deal with the stress of his faltering career he asked that his records be reviewed and that he be considered for a general discharge if at all possible.  He concluded his statement by stating that he truly regretted the blemish he had placed on his military career and on his life and prayed that he would have the strength to pursue a true and full life, but most of all learn and teach others of his mistakes.

12.  The applicant's medical records are not available to determine the circumstances related to his injury or the extent of the medical treatment he was receiving for his leg injury at the time he was being processed for discharge.  The applicant provided no medical documentation to support his report he injured his leg during his second enlistment.

13.  Item 9 (PULHES) and Item 10 (Physical Category Code), of the applicant's DA Form 2, Personnel Qualification Record, Part I, shows the applicant had a 
P-1, U-1, L-1, H-1 E-1, S-1 Code "A" physical profile.

14.  Item 4 (Assignment Considerations), of the applicant's DA Form 2-1, Personnel Qualification Record, Part II, has no entry to show the applicant's physical profile, if one was imposed upon him.




15.  On 29 July 1991, the applicant's unit commander recommended that he be discharged from the Army under the provisions of Army Regulation 635-200, chapter 14, for the wrongful use of marijuana.  In his personal evaluation of the applicant's conduct, duty performance, and potential, the applicant's commander indicated he performed at a "Poor" level and should be separated.  

16.  On an unspecified date, the applicant's battalion commander recommended approval of the applicant's separation and further recommended that he receive a discharge under other than honorable conditions.

17.  On 16 August 1991, the applicant's brigade commander recommended approval of the applicant's separation and further recommended he be furnished an under other than honorable conditions discharge and that any contemplated administrative separation board action be waived.

18.  On 4 September 1991, the approving authority, a major general, approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct, commission of a serious offense – abuse of illegal drugs and directed that he be discharged under other than honorable conditions.

19.  The applicant was discharged with an under other than honorable conditions discharge in the rank and pay grade of Private, E-1, on 12 September 1991, under the provisions of Army Regulation 635-200, chapter 14.  On the date of his discharge, the applicant had completed 1 year, 5 months and 25 days net service this period and a total of 3 years prior active service.

20.  On his discharge date, the applicant was issued a Memorandum, Subject:  Notification of Personnel Action.  In this memorandum, the applicant was notified, "You have the right to submit a request to the Army Discharge Review Board if you feel the decisions concerning your release from the service were not entirely fair and objective or did not consider all the facts in the case."  The applicant was further notified he had 15 years in which to apply.

21.  The applicant’s record documents that the highest rank and pay grade he held on active duty was that of Specialist Four during his first enlistment and Private First Class during the enlistment which was terminated by his misconduct.  The applicant's service personnel records contain no documented acts of valor, achievement, or service warranting special recognition.  The applicant was provided the letter of commendation and the letter of appreciation he submitted in support of his request; however, these letter were given to him while he served honorably during his first enlistment.

22.  The applicant's service records contain eleven DA Forms 4856, General Counseling Form, that were completed on various dates during the period from 8 September 1990 through 1 May 1991.  Some DA Forms 4856 contain entries which indicate that the applicant had received an injury to one of his legs; 
however, the extent of the injury and the extent of the medical treatment he was receiving is not a matter of record.  DA Forms 4856 prepared on the following dates contain entries that refer to an injury:  

      a.  8 September 1990 - "We have noticed that your knee has been giving you problems."

      b.  3 October 1990 - "We know you have a problem with your knee and that hinders your performance sometimes; but, we expect you to train and perform your job, as well as expected."

      c.  29 October 1990 - "You are being counseled on your performance during the PT (physical training) Test." . . . "This is the second time you failed to pass the PT Test." . . . "Promotions may be affected and disciplinary actions may be taken."

      d.  1 November 1990 - "During this month you participated in the PT Test and you did not make it.  You need to improve very soon.  You have already been counseled on it."

	e.  3 January 1991 - "Because of your injury, you were absent from the majority of the training conducted." . . ."You need to recuperate from your injury ASAP (as soon as possible)." . . . "I cannot afford to lose anyone to go to the gym to work on your weakness - your knee - I know you are attending physical therapy."

	f.  Two counseling forms dated 11 February 1991 - "[the applicant's] performance has been affected due to his injury (knees).  His physical profile keeps him from doing his job in the mortar section."

	g.  4 March 1991 - "His injury is still affecting his potential as a Soldier.  He states that he will be evaluated for a possible permanent profile."

	h.  1 May 1991 - "[the applicant] was not able to participate with the mortar section due to his profile."

23.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.
24.  Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator 1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

25.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, then in effect, established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

26.  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.

27.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization.

28.  Army Regulation 15-185 provides the policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record. The ABCMR considers individual applications that are properly brought before it.  
In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant alleges that the incident which resulted in his discharge was his first offense and that he was introduced to marijuana at Fort Ord and used it to help him, in effect, to deal with the pain of an injury he received to his leg.  The evidence, however, shows that this was not an introductory first offense.  During his first enlistment, while he was stationed at Fort Lewis, the applicant had received non-judicial punishment for the wrongful possession of marijuana.

3.  The applicant requests that the Board consider his outstanding service and his awards and the fact that he was an E-4 in a squad leader's position at Fort Ord at the time of his offense.

4.  The evidence shows that at the time discharge action was initiated against him the applicant was serving in the rank of Private First Class and there is no evidence he was serving as a squad leader.

5.  The evidence shows that the applicant's performance was not in the range of outstanding as he alleges. The applicant's commander described his conduct and performance as "poor."

6.  Although medical documentation and profile records that are referred to in counseling statements are not available for the Board's review, and he provided none for the Board's consideration, it appears the referred to injury to his knee or knees was having an effect on his overall performance of his duties; however, counseling records also suggest other performance problems.

7.  Concerning the alleged "awards" he received, the letter of appreciation and the letter of commendation the applicant submitted as his "awards" were both received by him during his first enlistment.  There is no evidence the applicant 
received any accolades during his second enlistment and his service personnel records contain no documented acts of valor, achievement, or service warranting special recognition.

8.  Assuming that the applicant did have an injury to his leg, or legs, as indicated in counseling records, there was absolutely no reason for the applicant to resort to self-medicating with marijuana if indeed he were experiencing pain sufficient to cause him to turn to marijuana for pain relief.  It appears the applicant is now attempting to justify his involvement with marijuana based on an injury; however, the evidence is clear the applicant had an involvement with marijuana during his first enlistment and there is no evidence he had any injuries at that time.  It appears his involvement with marijuana continued or had a resurgence during his second enlistment.

9.  Further assuming that the applicant had an injury to his leg, or legs, as indicated in counseling records, there was absolutely no reason for the applicant to resort to self-medicating with marijuana.  The military services had and have the best medicine available and if he and members of his chain of command felt he was not being treated adequately, he had a number of resources; such as members of his immediate chain of command, members of the chain of command above battalion level, hospital and clinical patient representatives, representative of the office of the inspector general, members of Congress, and so forth; he could have turned to get the proper medical attention.

10.  In view of the evidence in this case, the applicant is therefore not entitled to an upgrade of his under other than honorable conditions to either a general, under honorable conditions, or to a fully honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  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.



      __________x_____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070012092



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ABCMR Record of Proceedings (cont)                                         AR20070012092



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