IN THE CASE OF:	  

		BOARD DATE:	       17 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080008901 


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 that his discharge under other than honorable conditions be upgraded to a general discharge. 

2.  The applicant states that he was discharged under other than honorable conditions because of supposed repeated positive urinalysis tests which he argued at the time to be wrong because the alleged repeated use did not take place.  He goes on to state that he has discovered a letter from the Department of the Army in a box at his deceased parent’s home and now sees the possibility to correct the mistaken injustice that was taken against him.   

3.  The applicant provides a copy of a Department of the Army letter regarding the Positive Urinalysis Tests during the period of 27 April 1982 through 31 October 1983.  

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 in the Regular Army on 9 October 1979 for a period of 3 years, training as a military policeman and assignment to Europe.  At the time of his enlistment he indicated that he had experimented with marijuana.  He completed his one-station unit training (OSUT) at Fort McClellan, Alabama and was transferred to Germany on 12 February 1980 for assignment to a military police company with duties in the Personnel Reliability Program (PRP).

3.  In December 1980, a suspension of personnel action was initiated against the applicant because he was in a vehicle in which a controlled substance (marijuana) was found.  The applicant subsequently admitted that he had purchased the marijuana from an American male at the Star Light Disco.  

4.  The applicant was temporarily disqualified from the PRP and was subsequently reclassified to the military occupational specialty (MOS) of a light weapons infantryman.  He was also reassigned to an Infantry company and was advanced to the pay grade of E-4 on 1 August 1981.  

5.  On 30 September 1982, he reenlisted for a period of 3 years and training as a Nuclear Weapons Electronics Specialist in MOS 35F.     

6.  He departed Germany on 27 April 1983 for Redstone Arsenal, Alabama to attend training in MOS 35F, with a report date of 29 April 1982.

7.  On 16 August 1983, nonjudicial punishment (NJP) was imposed against the applicant for wrongfully having in his possession cocaine residue on 21 June 1983 and for wrongfully and knowingly using cocaine and THC (tetrahydrocannabinol) as documented by a positive urinalysis on 21 June 1983.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty, and restriction.  He was also enrolled in the Alcohol and Drug Abuse Prevention and Control  Program (ADAPCP). 

8.  The applicant also tested positive for THC in urinalysis samplings conducted on 20 July and 15 August 1983.

9.  On 3 October 1983, the applicant’s commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – pattern of misconduct.  He cited the applicant’s repeated wrongful use of controlled substances and his failure to respond to rehabilitation and counseling as the basis for his recommendation.
10.  Meanwhile, on 28 October 1983, the Department of the Army (DA) dispatched a message (DA message DTG 281753Z October 1983 Subject: Urinalysis Drug Testing Program) informing commanders to not use positive test results for any purpose until they have requested and received re-verification of the test results from the laboratory.

11.  On 21 November 1983, after consulting with counsel, the applicant waived all of his rights and elected to submit a statement in his own behalf in which he stated that he was aware of the message regarding the re-verification of urinalysis results and that he freely and voluntarily admitted that the test results were accurate and that he had in fact used cocaine and marijuana prior to the tests being conducted. He further indicated that his separation would not be based on the test results but on his admission of continuing drug abuse.  He also indicated that he had been advised of his rights by his counsel and the possible consequences of signing such a statement.  He went on to state that he simply wanted to get out of the Army and make a new start under conditions that have potential.

12.  On 9 December 1983, the appropriate authority (a major general) approved the recommendation for discharge and directed that he be discharged under other than honorable conditions.

13.  Accordingly, he was discharged under other than honorable conditions on 16 December 1983, under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – Pattern of Misconduct.  He had served 4 years, 2 months, and 8 days of total active service.

14.  The DA letter provided by the applicant with his application is a letter that was dispatched to individuals who had positive urinalysis results during the period of 27 April 1982 through 31 October 1983 that were determined to be not scientifically or legally supportable.  The letter advised the individuals of their right to apply to this Board if they believed that an error or injustice had occurred.

15.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions is normally considered appropriate.


16.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

17.  Army Regulation 635-200, paragraph 3-7b, also provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Accordingly, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question.

3.  While the applicant has provided a copy of a standard letter that was dispatched to members who had received positive urinalysis results, the letter provided does not contain his name or any indication it was sent to him.  However, even if it was dispatched to the applicant, it had no bearing on his discharge because the applicant’s positive urinalysis results were not used as the basis for his discharge.  In the applicant’s case, his possession of a controlled substance alone was sufficient to process him for separation for misconduct and his voluntary admission that he had used controlled substances on at least three occasions further supported the discharge that he received for a pattern of misconduct.  Furthermore, had the applicant been discharged strictly based on the results of the urinalysis results in question, he would have been discharged for Misconduct – Drug Abuse or Misconduct – Drug Abuse Rehabilitation Failure. 

4.  Although not directly related to the applicant’s discharge at the time, it is noted that at the time the applicant enlisted, he admitted to experimenting with marijuana.  He was subsequently caught with marijuana and admitted that he had purchased the marijuana.  He was serving as a military policeman at the time and was reclassified to another MOS as a result of his actions at the time.

5.  The applicant’s contention that he was wrongfully accused of the repeated use of a controlled substance has been noted and appears to lack merit.  The applicant has failed to provide sufficient evidence to overcome the evidence of record that clearly supports the action taken by the Army at the time.  His service simply does not rise to the level of a discharge under honorable conditions.     

6.  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

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080008901



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ABCMR Record of Proceedings (cont)                                         AR20080008901



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