IN THE CASE OF:	  

		BOARD DATE:	  24 July 2008

		DOCKET NUMBER:  AR20080007404 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he received an UOTHC discharge for twice testing positive for marijuana.  Although he admits guilt, he states he was never offered rehabilitation and contends that the punishment he received was too severe.  He claims to have learned in recent conversations with others that their UOTHC discharges for alcohol and drug abuse were later upgraded to an HD, and he requests that same consideration.  

3.  The applicant also states that one year after his older brother passed away, he joined the Army at the age of 18, with plans to marry his fiancé.  However, he states that she ran away with her boss during his sixth month of service, at which time he began to hang around the wrong crowd.  He claims to have subsequently tested positive for marijuana at the age of 19.  He states that he chose to be discharged with an UOTHC rather than to be tried by court martial and face the possibility of receiving a dishonorable discharge.  He finally states that he has not been in any trouble since his separation from the Army and he indicates he has been gainfully employed for the past 12 years.

4.  The applicant provides a self authored statement 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 military record shows he enlisted in the Regular Army and entered active duty 11 January 1983.  He completed basic combat training at Fort Jackson, South Carolina, and advanced individual training (AIT) at 
Fort Eustis, Virginia.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 67Y (Attack Helicopter Repairman).

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows, in Item 18 (Appointments and Reductions), that he was promoted to the rank of private first class/E-3 (PFC) on 1 January 1984, and that this was the highest rank he held while serving on active duty.  It also shows that he was reduced to 
private/E-2 (PV2) on 18 January 1984, and to private/E-1 (PV1) on 15 March 1984.  

4.  The applicant's record also shows that during his active duty tenure, he earned the Army Service Ribbon and Marksman Qualification Badge with 
Rifle Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  His disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions, 
18 January and 15 March 1984, for the wrongful use of marijuana.

5.  On 29 March 1984, the unit commander notified the applicant that he was initiating action to separate him under the provisions of paragraph 14-12c,
Army Regulation 635-200, based on his record of NJP for drug use. 


6.  On 3 April 1984, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects.  The applicant completed his election of rights by waiving consideration of his case by an administrative separation board; waiving representation by counsel; and electing not to make a statement on his own behalf.

7.  On 2 May 1984, the separation authority, upon the recommendation of the applicant’s chain of command, directed that the applicant be separated under the provisions of paragraph 14-12c, Army Regulation 635-200, and that he receive an UOTHC discharge.  On 18 December 1991, the applicant was discharged accordingly.

8.  The separation document (DD Form 214) issued to the applicant upon his discharge shows he was separated by reason of “Misconduct-Commission of a Serious Offense” after completing 1 year, 3 months and 24 days of creditable active military service.  The applicant authenticated this document with his signature in Item 21 (Signature of Member Being Separated) on the date of his discharge.  

9.  On 8 October 1985, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge after determining that his discharge was proper and equitable. 

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An honorable or general discharge may be awarded by the separation authority if warranted by the member's overall record of service; however, an UOTHC discharge is normally considered appropriate for members separated under these provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his UOTHC discharge should be upgraded to an HD because his punishment for his use of marijuana was too severe and because others separated for the same reason had their UOTCH discharge upgraded has been carefully considered.  However, these factors are not sufficiently mitigating to grant the requested relief.

2.  The evidence of record confirms, and the applicant admits, that he twice tested positive for the use of marijuana and accepted NJP for these acts of misconduct.  By violating the Army's policy not to possess or use illegal drugs, he compromised the trust and confidence placed in him as a Soldier.  As a Soldier, he had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, he knowingly risked a military career and diminished the quality of his service below that meriting an HD.  

3.  Although the applicant's post service employment record is noteworthy, this factor alone does not support an upgrade of his discharge at this late date.  His record documents no acts of valor, significant achievement, or service warranting special recognition that would have supported the issue of an HD or GD by the separation authority at the time, nor that would support an upgrade of his discharge at this time.  

4.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

5.  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. 

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
      
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)                                         AR20080007404



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ABCMR Record of Proceedings (cont)                                         AR20080007404



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