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ARMY | BCMR | CY2008 | 20080005847
Original file (20080005847.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	        22 July 2008

		DOCKET NUMBER:  AR20080005847 


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 general discharge be upgraded to honorable. 

2.  The applicant states that he was discharged for abuse of an illegal drug.  He contends that marijuana was present on the post and that after a party the master sergeant came in the next morning with medical personnel and went from floor to floor.  He states that this was entrapment for numerous service people, that being labeled as a drug addict has affected his life, and that marijuana is being dispensed through ATMs [automated teller machines] in the United States.

3.  The applicant provides no additional 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 enlisted on 19 February 1981 for a period of 4 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 75E (personnel actions specialist).  On 2 January 1985, he was honorably discharged for immediate reenlistment.  He reenlisted on 3 January 1985 for a period of 4 years.    

3.  On 20 December 1985, nonjudicial punishment was imposed against the applicant for using marijuana.  His punishment consisted of a reduction to E-3 (suspended), a forfeiture of pay, and extra duty.  On 22 January 1986, the suspended punishment was vacated.  

4.  On 5 December 1986, nonjudicial punishment was imposed against the applicant for using marijuana.  His punishment consisted of a reduction to E-2 (suspended), a forfeiture of pay (suspended), and extra duty.

5.  On 17 December 1986, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense).  On 18 December 1986, he consulted with counsel and waived consideration of his case by a board of officers.  He acknowledged that he might encounter substantial prejudice in civilian life if a general discharge was issued and he elected not to submit a statement on his own behalf.      

6.  On 19 December 1986, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.  He cited the applicant’s possession and use of marijuana as evidenced by a positive urinalysis resulting from a test administered on 
30 September 1986.

7.  On 23 December 1986, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

8.  Accordingly, the applicant was discharged on 10 February 1987 with a general discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (abuse of illegal drugs).  He had served a total of 5 years, 11 months, and 22 days of creditable active service.    

9.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.


10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the member's overall record.

11.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided no evidence to support his contention that "entrapment" was utilized in his case.  This issue could have been addressed in a statement with his discharge packet.  However, the applicant elected not to submit a statement on his own behalf.  Evidence of record shows that he received nonjudicial punishment for using marijuana in December 1985 and, a year later, he received nonjudicial punishment again for using marijuana.

2.  The applicant’s record of service included two nonjudicial punishments for using marijuana.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  __xx____  __xx____  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.



      _________xxxx__________
      		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)                                         AR20080005847



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ABCMR Record of Proceedings (cont)                                         AR20080005847



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