IN THE CASE OF:	  

		BOARD DATE:	  25 September 2008

		DOCKET NUMBER:  AR20080012576 


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, under honorable conditions discharge (GD) be upgraded to a fully honorable discharge (HD).

2.  The applicant states, in effect, that he would like the opportunity to serve and do what is right.

3.  The applicant submits an Application for the Review of Discharge from the Armed Forces of the United States (DD Form 293) 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 14 August 1984.  He was trained in, awarded, and served in military occupational specialty (MOS) 76X (Subsistence Supply Specialist).

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows, in Item 18 (Appointments and Reductions), that he entered the Regular Army in the rank of private first class (PFC) on 14 August 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 17 June 1985 and to private/E-1 (PV1) on 11 February 1986.

4.  The applicant's record also shows that during his active duty tenure, he earned the Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).  His record documents no acts of valor, significant achievement, or service warranting special recognition.

5.  The applicant’s 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 the following three separate occasions for the offenses indicated:  17 June 1985, for the wrongful use of marijuana; 31 July 1985, for submitting a falsified claim; and 11 February 1986, for the wrongful use of marijuana.

6.  On 13 February 1986, a Bar to Reenlistment Certificate (DA Form 4126-R) was initiated against the applicant based on his record of NJP for wrongful use of marijuana and for falsifying an official document.  On 19 February 1986, this action was approved.

7.  On 10 March 1986, 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 wrongful use of marijuana on two separate occasions.  

8.  On 17 March 1986, 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 requesting representation by counsel, and electing not to make a statement in his own behalf.

9.  On 20 March 1986, 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 a GD.  On 26 March 1986, the applicant was discharged accordingly.

10.  The separation document (DD Form 214) issued to the applicant upon his discharge shows he was separated by reason of “Misconduct-Drug Abuse” after completing 1 year, 7 months, and 13 days of creditable active military service.  Item 27 (Reenlistment Code (RE-Code)) contains the entry “RE-3” and the applicant authenticated this document with his signature in Item 21 (Signature of Member Being Separated) on the date of his discharge.  

11.  On 14 July 2008, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge; however, his application exceeded the ADRB's 15-year statute of limitations.  Therefore, he was advised to apply to this Board.  

12.  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 GD should be upgraded to an HD to allow him to serve and do what is right has been carefully considered.  However, this factor is not sufficiently mitigating to grant the requested relief.

2.  The evidence of record confirms that the applicant accepted NJP on three separate occasions for acts of misconduct that included his abuse of illegal drugs.  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 clearly diminished the overall quality of his service below that meriting an HD.  

3.  The evidence of record also 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.  


4.  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. 

5.  The applicant is advised that an RE-3 applies to persons who are not considered fully qualified for reentry or continuous service; however, the disqualification may be waived.  As a result, if he is otherwise qualified and still desires to reenter military service, he should contact a local recruiter to determine his eligibility.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process
RE code waivers.  

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)                                         AR20080012576



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ABCMR Record of Proceedings (cont)                                         AR20080012576



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