RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  23 March 2008 
	DOCKET NUMBER:  AR20070014203 


	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. Antoinette Farley

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Ms. Yolanda Maldonado

Member

Mr. Edward E. Montgomery

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 be upgraded.

2.  The applicant states, in effect, that he is a proud American and a staunch supporter of the U.S. troops.  The applicant continues that he finds it imperative that he address the issue of his service record.  The applicant adds that he regrettably indulged in the use of marijuana, recognized his error, and that the Army provided him counseling through rehabilitation. 

3.  The applicant alleges that his unit commander erred by unlawfully testing him twice in the same month which was unlawful, according to Army Regulations. The applicant states that he stopped smoking and was geared to pursue his military career and would, if possible love to help serve his country today.  The applicant continues that this unauthorized scar is devastating and, if perpetual, would define him as a failure and an ex-patriot.  The applicant continues that he wants administrative justice, the error which was committed by his commanding officer rectified, and established as a dedicated American.

4.  The applicant provides no additional documentary information in support of this application.  

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 enlisted in the Regular Army on 9 September 1980 for a period of three years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  

3.  The record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on 11 July 1985.  His punishment consisted of a reduction to the rank of private first class/pay grade E-3 and 7 days of extra duty.  The applicant appealed his punishment, which was denied on 24 August 1985.

4.  On 14 August 1985, the applicant accepted a Summarized Article 15 for failing to go to his appointed place of duty on 26 July 1985.  The applicant's punishment consisted of 14 days extra duty. 

5.  On 7 October 1985, that applicant was tested for alcohol and drug use.  

6.  On 27 October 1985, the applicant was ordered to participate in a mandatory urinalysis.  

7.  The applicant's record shows that he tested positive for marijuana on 12 November 1985.  His record also shows that a second test dated 25 November 1985, found that he tested positive for marijuana. 

8.  The applicant's record contains an Incident Report - Final Report, dated
29 November 1985, which found that he failed to keep on the right side of the roadway on 27 October 1985.  The report further shows that his blood alcohol level was “1.55 0/00.”  On 30 October 1985, the applicant record shows he received a second drug test.

9.  On 12 December 1985, the applicant accepted NJP under Article 15, UCMJ for wrongful use of marijuana between 1 October 1985 and 7 October 1985.  His punishment consisted of a reduction to the rank of private/pay grade E-1, forfeiture of $319.00 pay for two months, 45 days extra duty, and 45 days of restriction (restriction suspended until 12 February 1986).

10.  The applicant's personnel record contains a Military Police Report, dated
18 December 1985, which shows that on 27 October 1985, the applicant was arrested for driving drunk and that he detained by the German police.  

11.  On 10 January 1986, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c for misconduct - abuse of illegal drugs.  The specific allegations on which this proposed action was based were a positive urinalysis for marijuana, three Article 15's, and drunk driving/driving while intoxicated.
12.  On 16 January 1985, the applicant consulted with counsel of the basis for the contemplated separation action for misconduct.  He was advised of its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He indicated that he would submit a written statement no later than 21 January 1985.  He acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life if a General Discharge Certificate is issued to him.  He understood that if he received a discharge certificate/
character of service which is less than honorable, he could apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he realizes than an action of consideration by either board did not imply that his discharge would be upgraded.

13.  On 17 January 1986, the unit commander forwarded the separation action to the intermediate commander with a recommendation for a General Discharge Certificate.

14.  On 21 January 1986, the intermediate commander recommended approval of the separation action and forwarded the action to the separation authority.

15.  On 22 January 1986, the command drafted a memorandum for record which shows the applicant failed to submit a statement in his own behalf by the established due date.

16.  On 31 January 1986, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - drug abuse, with issuance of a General Discharge Certificate.

17.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 14 March 1986, shows he was discharged from active duty under the provisions of Army Regulation 635-200, paragraph 14-12c.  His DD Form 214 shows he completed 5 years, 6 months, and 6 days of creditable active military service.  

18.  There is no evidence which indicates the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.  

19.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 
would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

20.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to honorable because he was unlawfully tested twice for drugs while in an alcohol and drug rehabilitation program.

2.  The applicant's record clearly shows that he accepted three punishments under Article 15 of the UCMJ for failing to go to his appointed place of duty.

3.  The applicant's record shows he was initially tested for drug use on 7 October 1985, while participating in the alcohol and drug rehabilitation program and was then arrested for drunk driving on 27 October 1985.  The applicant's record also shows he was retested for the use of drugs immediately after being found driving while intoxicated.  The applicant's record shows that on 12 November 1985 and 30 November 1985, he tested positive for use of marijuana.  Therefore, the issuance of a second alcohol and drug test was as a result of the applicant's own misconduct.

4.  After review of the evidence of this case, it is determined that the applicant has not presented sufficient evidence which warrants changing his general discharge to an honorable discharge.

5.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under chapter 14 for misconduct.  It appears the separation authority determined that the applicant's overall service did not meet 
the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable discharge, but it was sufficient to warrant a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_YM_____  _SLP____  _EEM__  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.




__Shirley L. Powell___
          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.