IN THE CASE OF:	  

		BOARD DATE:	        09 OCTOBER 2008

		DOCKET NUMBER:  AR20080011482 


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 general discharge (GD), under honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that he served his country for 10 years and proved to be a good Soldier.  He was persecuted via a court-martial for allegations of marijuana use through a botched urinalysis test.  He believes he was persecuted because of his rank and his honesty.  It has been 19 years and his discharge still haunts him and his career goals.  Since his discharge, he earned his Bachelor of Technology Degree.   

3.  The applicant did not provide additional documentary evidence in support of this 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.  On 19 August 1978, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 11 July 1979, he was discharged from the DEP and enlisted in the Regular Army for 4 years.  He completed training requirements and was awarded military occupational specialty 13B (Cannon Crewman).  The applicant attained the grade of staff sergeant/E-6. 

3.  On 30 June 1988, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for wrongful use of marijuana.  His punishment consisted of a reduction to sergeant/E-5 (suspended for 60 days) and a forfeiture of $250.00 pay per month for 2 months. He did not appeal the Article 15.

4.  On 29 June 1988, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 14 of Army Regulation 635-200 (Enlisted Personnel Separations) by reason of misconduct – drug abuse with a GD.  

5.  On 1 July 1988, the applicant consulted with legal counsel and requested appearance before an administrative separation board. 

6.  On 11 October 1988, the applicant appeared with counsel before the administrative separation board.  Under oath, the applicant made the following statement:  "I knowingly used marijuana.  I used it at the end of April '88.  I used it the weekend before the urinalysis.  The urinalysis was the following Monday.  I got it from a civilian friend.  I puffed it.  I don't know how many puffs I took.  I guess it was a 10 minute period of puffs.  I was in a car.  The windows were not open.  I don't know why I used it.  I told Captain ____ I smoked marijuana after the results came back."  

7.  After considering all the evidence and testimony, the administrative separation board recommended that the applicant be separated from the Army for misconduct with a GD.

8.  On 23 May 1989, after reviewing the separation proceedings, the separating authority approved the findings of the administrative separation board and directed the applicant be discharged with a GD.  He indicated that whether the applicant's urine sample was handled in accordance with the chain of custody procedures or not was not an issue for the board because the applicant admitted to the use of marijuana.  The nanogram level at which the applicant's urine sample tested indicated more than a one time use of a small amount of marijuana.  He was satisfied the testing procedures were done in accordance with Army regulations and the applicant's defense counsel raised no objections.

9.  On 10 July 1989, the applicant was discharged by reason of misconduct – drug abuse after completing 10 year of active military service.  

10.  Army Regulation 635-200 (Enlisted Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14-5, in pertinent part, established policy and prescribed procedures for separating members for misconduct – civilian conviction.  It authorized the discharge of Soldiers when initially convicted by civilian authorities, or when action was taken that was tantamount to a finding of guilty.  Retention could be 
considered only in exceptionally meritorious cases when clearly in the best interest of the Army.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  

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

12.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time and he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to have jeopardized his rights.  The applicant was afforded the opportunity to present his evidence at an administrative separation board where he was represented by counsel.  Under oath, he admitted to using marijuana.  Since the applicant admitted to using marijuana, the urinalysis procedures were not an issue before the board.

2.  There is no evidence that the applicant was persecuted via a court-martial.  There were no court-martial charges brought against him.  Instead, he received NJP for the wrongful use of marijuana and he did not appeal the Article 15.  By violating the Army's policy not to possess or use illegal drugs, the applicant compromised the special trust and confidence placed in a non-commissioned officer (NCO).  The applicant, as a NCO, had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career and this misconduct diminished the quality of service below that meriting a fully honorable discharge.

3.  Given the above, the character of the applicant's discharge is commensurate with his overall record of military service.  Inasmuch as an under other than honorable conditions discharge is normally considered appropriate for the applicant's type of discharge, his command gave a fair assessment of his overall length and quality of service and determined that he deserved a GD.  

4.  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 any evidence that would satisfy this requirement and there is no basis upon which to grant his request.

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)                                         AR20080011482





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ABCMR Record of Proceedings (cont)                                         AR20080011482



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