IN THE CASE OF:	  

		BOARD DATE:	  19 February 2009

		DOCKET NUMBER:  AR20080016247 


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 be upgraded to honorable. 

2.  The applicant states, in effect, that he was advised that his discharge would be automatically upgraded to fully honorable after 6 months.  He is trying to qualify for a veterans grant for college.   

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 records show that he enlisted in the Regular Army, in pay grade E-1, on 17 January 1984 for 4 years.  He was advanced to pay grade E-3 on 1 October 1984.

3.  On 11 December 1984, the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the wrongful use of marijuana between 11 August and 21 August 1984.  His punishment included a reduction to pay grade E-2 (suspended to be automatically remitted if not vacated before 10 January 1985), a forfeiture of $156.00 pay, and 14 days extra duty.  He did not appeal the punishment.

4.  On 14 March 1985, the applicant's unit commander initiated action barring him from reenlistment.  The unit commander stated that the action was being initiated due to the applicant receiving an Article 15 on 11 December 1984 for the wrongful use of marijuana.  The applicant elected not to submit a statement in his own behalf.  The bar was approved on 1 April 1985.

5.  On 3 May 1985, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for the wrongful use of marijuana between 3 March and 13 March 1985.  His punishment included a reduction to pay grade E-1, a forfeiture of $310.00 pay per month for one month, and 45 days extra duty. He did not appeal the punishment and was reduced to pay grade E-1 on 3 May 1985.  

6.  On 20 May 1985, the applicant's unit company commander notified him that he was initiating action to discharge him from the US Army under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12d.  The unit commander stated the proposed action was based upon the applicant's 11 December 1984 Article 15 for the use of marijuana and a 11 March 1985 urinalysis test where he tested positive for marijuana.  The applicant was also counseled for being absent from his appointed place of duty on two occasions, disobeying a lawful order on 5 October 1985, and for debts on one occasion.

7.  On 21 May 1985, the applicant acknowledged receipt of notification of the proposed separation action.  After consulting with counsel, he elected to appear before a board of officers.  

8.  On 4 June 1984, the applicant's battalion commander recommended approval of the request for his separation under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12d.  


9.  On 2 July 1985, a Board of Officers convened and after careful consideration of the evidence found the applicant guilty of serious misconduct.  The board recommended he be discharged under the provisions of Army Regulation 635-200 and furnished a general discharge.

10.  On 9 July 1985, the Commander, 1st Cavalry Division Support Command, Fort Hood, Texas, "withstanding" the board's recommendation, recommended the applicant be eliminated under the provisions of Army Regulation 635-200, paragraph 14-12d(2), for Misconduct – Abuse of Illegal Drugs.

11.  On 19 August 1985, the appropriate separation authority approved the applicant's discharge and directed the issuance of a General Discharge Certificate.  

12.  On 21 August 1985, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – drug abuse, with a general discharge.  He was credited with 1 year, 7 months, and 12 days total active service.

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

14.  Army Regulation 635-200 (Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Paragraph 14-12c specified commission of a serious offense and paragraph 14-12d specified abuse of illegal drugs.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier who was discharged under this chapter.

15.  Paragraph 14-12(2)d of this regulation also provided for the separation of Soldiers for commission of a serious offense, such as the abuse of illegal drugs.  It provided that individuals identified as first time drug abusers, grades E-5 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions was 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.  

2.  The applicant contends that he was advised that his discharge would be upgraded to honorable after 6 months.  The applicant is advised that the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge to honorable after 6 months.  

3.  The applicant's contentions have been considered; however, they do not support a change to his general discharge.  The evidence shows the applicant was punished twice under Article 15 for the wrongful use of marijuana.  These two incidents that led to the applicant’s discharge were serious acts of misconduct.  By having twice tested positive for the use of marijuana, an illegal drug, he violated the trust and confidence his chain of command may have had in him. 

4.  It appears that the applicant's records were taken into consideration by his chain of command based on his having received a general discharge instead of a discharge under other than honorable conditions, which was normally considered appropriate at the time.  The evidence shows the applicant’s misconduct diminished the quality of his overall service below that meriting a fully honorable discharge.  He was properly separated for misconduct, illegal use of drugs, and he has submitted neither probative evidence nor a convincing argument in support of his request. 

5.  The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

6.  In view of the foregoing, there is no basis for granting the applicant's request based on his desire to proudly display an honorable discharge.


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)                                         AR20080016247



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ABCMR Record of Proceedings (cont)                                         AR20080016247


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