RECORD OF PROCEEDINGS


	IN THE CASE OF:	  

	BOARD DATE:	  8 May 2008
	DOCKET NUMBER:  AR20080000908 


	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.

      The following members, a quorum, were present:













	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 (under honorable conditions) discharge be upgraded to honorable.

2.  The applicant states, in effect, that he was told that if he did not get into any trouble for 3 years he could apply for an upgrade.  He applied to the Army Discharge Review Board (ADRB) and his request was denied.  He also states that an error was made in testing for substance use and unfair standards applied. The Army was releasing a lot of people at that time.  By charging him with misconduct, they could release him without having to pay severance pay.

3.  The applicant submitted no additional documents 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 military records show that he enlisted in the Regular Army, in pay grade E-1, on 20 May 1986, for 3 years.  He reenlisted on 9 December 1988 for 4 years.  He was promoted to pay grade E-5 on 1 July 1990.

3.  On 3 January 1992, the Drug Testing Laboratory notified the applicant's commander that he had tested positive for marijuana.

4.  On 27 January 1992, the applicant accepted non-judicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), for the wrongful use of marijuana on 27 November 1991.  His punishment included reduction to pay grade E-4.  The applicant did not appeal the punishment.

5.  On 28 January 1992, the applicant's commander recommended he be barred from reenlistment based on a positive drug urinalysis.  The bar was approved on 29 January 1992.  
6.  On 12 March 1992, the applicant's unit commander requested an elimination packet for the applicant through the Staff Judge Advocate.  On 30 March 1992, the applicant's company commander notified him that he was initiating action to separate him for the commission of a serious offense, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c.  He stated the reason for the proposed action was that the applicant had tested positive on a drug urine screening.  He recommended the applicant receive a characterization of service under other than honorable conditions.

7.  On the same day, the applicant acknowledged receipt of notification of the recommendation that he be separated from the Army under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for commission of a serious offense.  

8.  On 1 April 1992, the applicant, after consulting with counsel, waived consideration of his case by an administrative board and elected not to submit a statement in his own behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  

9.  On 2 April 1992, the applicant's commander recommended his separation under the provisions of paragraph 14-12c, Chapter 14, Army Regulation 635-200. He recommended the applicant receive a discharge with his service characterized as under other than honorable conditions.  

10.  On 16 April 1992, the appropriate separation authority approved the discharge and directed the issuance of a General Discharge Certificate.  The request for a rehabilitative transfer was waived since it would not be in the best interest of the Army and it would not produce a quality Soldier.

11.  The applicant was discharged, in pay grade E-4, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for misconduct/abuse of illegal drugs, with a general discharge, on 23 April 1992.  

12.  On 10 July 1997, the ADRB denied the applicant's petition for an upgrade of his discharge.  The ADRB determined that the reason and authority should be changed from Misconduct-Abuse of Illegal Drugs to Misconduct.  The applicant was reissued a DD Form 214 changing the narrative reason for separation to misconduct.

13.  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 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 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.

14.  Paragraph 14-12c(2) of this regulation also provided for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs.  It provided that individuals identified as first time drug abusers, grades E-5 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could also 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 was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

15.  Army Regulation 635-200, paragraph 3-7a, further 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.  

2.  The applicant contentions have been considered.  However, the applicant tested positive for marijuana.  This incident that led to his discharge was a serious act of misconduct.  The applicant's command recommended he receive a characterization of service of under other than honorable conditions.  It appears that the applicant's overall record was taken into consideration by the separation authority based on his having received a general discharge, instead of a discharge under other than honorable conditions, which was normally considered appropriate at the time.  It is also noted it was not directed that he be reduced to the lowest enlisted grade as a result of the seriousness of the offense, as he was discharged in pay grade E-4. 

3.  The evidence shows the applicant’s misconduct diminished the quality of his overall service below that meriting a fully honorable discharge.  He was properly separated for his misconduct, for the illegal use of drugs, and he has submitted neither probative evidence nor a convincing argument in support of his request. 

4.  The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

5.  It is also noted that the ADRB determined that there was a material enhancement of rights for the applicant, since his narrative reason for separation was changed to misconduct.  Additionally, the applicant is advised that the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge based upon the passage of time.  

6.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his general 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


ABCMR Record of Proceedings (cont)                                         AR20080000908


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508