IN THE CASE OF:
BOARD DATE: 27 MAY 2009
DOCKET NUMBER: AR20080020054
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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general, under honorable conditions discharge (GD).
2. The applicant states, in effect, he tested positive for THC (tetrahydrocannabinol), the active ingredient in marijuana. He adds he was discharged because his unit and base were overcrowded. He states he accepted the discharge without knowing he could have contested it.
3. The applicant provides no additional information.
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 applicants 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 applicants 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 U.S. Army Reserve (USAR) for 8 years on 6 November 1992. On 27 April 1993, he entered active duty for training (ADT) on self-terminating orders and was assigned to Fort Sam Houston, TX, for training in military occupational specialty (MOS) 91Q (Pharmacy Specialist). He completed ADT on 14 December 1993 and was returned to his USAR unit of assignment, the 343rd Combat Support Hospital, Fort Hamilton, Brooklyn, NY.
3. Information surrounding the applicants discharge from the USAR is not contained in his Official Military Personnel File (OMPF). Orders 54-04, Headquarters, 77th USAR Command, Fort Totten, Flushing, NY, dated 23 February 1995, reduced the applicant from private first class (PFC)/E-3 to private (PV1)/E-1 and discharged him with an UOTHC, effective 23 February 1995. The authority for discharge was cited as Army Regulation (AR) 135-178 (Army National Guard and Army Reserve - Separation of Enlisted Personnel), paragraph 2-9g.
4. AR 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and USAR enlisted Soldiers for a variety of reasons. Chapter 2 deals with procedures for separation and provides that a Soldier who is entitled to a hearing before an administrative separation board may waive such a hearing. Paragraph 2-9g specifically provides that a Soldier may withdraw his or her waiver of the rights
anytime prior to the date the separation authority orders, directs, or approves the separation.
5. There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade within that boards 15-year statute of limitations.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests a discharge upgrade.
2. The applicant was reduced to private and discharged from the USAR on
23 February 1995 with an UOTHC discharge. The reason for discharge is not in the available record; however, because he was reduced in rank, it appears his discharge was based on misconduct and the Board accepts the applicants explanation he tested positive for marijuana use.
3. The use of illegal drugs goes against Army values and the behavior expected of Soldiers. The character of the applicants discharge is commensurate with the abuse of such drugs.
4. The applicant contends he did not know he had the right to contest his separation; however, his discharge order specifically cites Army Regulation 135-178, paragraph 2-9g. This paragraph specifically cites the right to withdraw a waiver of a right to an administrative separation board. The applicant knew or should have known this; therefore, it is presumed that his discharge proceedings were conducted in accordance with law and regulations applicable at the time and that his rights were protected.
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.
________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) AR20080020054
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ABCMR Record of Proceedings (cont) AR20080020054
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