RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20080002253 


	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:


M

Chairperson

M

Member

M

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 an upgrade of his discharge.

2.  The applicant states, in effect, that he would like to have his discharge upgraded.

3.  The applicant did not provide any additional documentary evidence in support of his 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's records show that he enlisted in the Regular Army for a period of 4 years on 8 February 1984.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle/Power Generator Mechanic).  The highest grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant’s awards and decorations include the Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge, with Rifle Bar.  His records do not show any significant acts of valor during his military service.   

4.  On 3 September 1985, the applicant participated in a unit urinalysis and his urine sample tested positive for marijuana.  

5.  On 21 October 1985, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations), for misconduct, abuse of illegal drugs.

6.  On 21 October 1985, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He elected not to submit a statement on his own behalf.

7.  On 21 October 1985, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct, abuse of illegal drugs.  The immediate commander further remarked that elimination for unsatisfactory performance was not considered appropriate because the use of illegal drugs was a serious offense and was not to be tolerated in the command.  

8.  The applicant's record contains a checklist for screening of records, used in connection with the preparation of the applicant's separation packet.  This checklist shows that, on 22 October 1985, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ, for using marijuana.  His punishment consisted of a reduction to the grade of private/E-1, a forfeiture of $310.00 pay for 2 months, and 45 days of extra duty.  

9.  On 28 October 1985, the applicant’s intermediate commander recommended approval of the applicant’s discharge. 

10.  On 5 November 1985, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct-abuse of illegal drugs, and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 12 November 1985.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with an under honorable conditions (general) character of service.  This form further confirms he completed a total of 1 year, 9 months, and 5 days of creditable military service.

11.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15 year statute of limitations.




12.  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.

13.  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’s discharge was appropriate based on his unlawful abuse of marijuana that was detected during the unit administered urinalysis on 3 September 1985.  His record of service shows he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for the wrongful use of marijuana.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge.

2.  All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.





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.




							JS
      ______________________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080002253



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