RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 May 2008
	DOCKET NUMBER:  AR20080001039 


	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.


 

Director

 

Analyst
      The following members, a quorum, were present:


  

Chairperson

 

Member

 

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 honorable. 

2.  The applicant states that he was told his discharge would be upgraded after 
6 months.  He contends that there was a mistake.  He got another test but was still discharged.  He needs this upgrade so that he can obtain employment.  

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214). 

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.  On 11 October 1979, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty 63B (Light Vehicle Mechanic).  

3.  On 4 September 1983, the applicant was promoted to the rank of sergeant, pay grade E-5.  He reenlisted on 22 September 1983 for an additional 4 years.

4.  On 29 May 1984, the applicant was assigned for duty as a light vehicle and power generator mechanic with the 501st Aviation Battalion in the Federal Republic of Germany.

5.  On or about 12 November 1985, the applicant rendered a urine sample during a unit directed urinalysis.  The sample tested positive for marijuana.


6.  On 28 March 1986, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for commission of a serious offense.   He had a positive urinalysis test result indicating that he had used marijuana. 

7.  The applicant consulted with counsel concerning his rights.  He elected not to make a statement in his own behalf.

8.  On 11 September 1986, a board of officers convened to consider the applicant for elimination under the provisions of Army Regulation 635-200, chapter 14, for drug abuse.  The applicant and his counsel were present.  The board found that a preponderance of the evidence supported the allegation and recommended separation and that he be issued a General Discharge Certificate. 

9.  On 10 October 1986, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under honorable conditions.  Accordingly, on 5 November 1986, the applicant was discharged under honorable conditions.  He had completed 7 years and 25 days of creditable active service.  

10.  On 30 July 1991, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

11.  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, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

12.  Army Regulation 635-200 further provides, in pertinent part, that the misconduct is considered a commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely-related offense under the Uniform Code of Military Justice.
  
13.  Under the Manual for Courts-Martial, the maximum punishment allowed for violation of Article 112a for wrongful use of marijuana is a punitive discharge and confinement for 2 years.


DISCUSSION AND CONCLUSIONS:

1.  The record shows that the applicant had tested positive for use of marijuana which is clearly a serious offense.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  There is no policy, regulation, directive, or law that provides for the automatic upgrade of a less than honorable discharge from military service.

4.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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)                                         AR20080001039



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