IN THE CASE OF:	  

		BOARD DATE:	        14 APRIL 2009

		DOCKET NUMBER:  AR20090000622 


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 general discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, when he returned from Panama, he was suffering from PTSD (post-traumatic stress disorder).  Because of this, there was no reason for his chain of command to reduce him from E-4 to E-1 or to discharge him with a GD.

3.  The applicant provides no additional documentation.

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 served in the Regular Army from 7 August 1985 through 26 January 1990.  He held military occupational specialty (MOS) 31M (Multi-channel Communications Equipment Operator).

3.  In 1989, the applicant was stationed at Fort Ord, CA, assigned to B Company, 127th Signal Battalion.  On 2 August 1989, he submitted a urine sample during a random unit urinalysis testing.  The results indicated that he used marijuana between 2 July 1989 and 2 August 1989.  On 19 September 1989, he submitted a second urine sample during a random unit urinalysis testing.  The results indicated that he used marijuana between 19 August 1989 and 19 September 1989.

4.  On 1 December 1989, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for the above two positive urinalyses.  As punishment, he was reduced from Specialist (SPC)/E-4 to Private (PV1)/E-1, made to forfeit $50.00 pay per month for 2 months, made to perform 30 days of extra duty, and given a verbal admonition.

5.  The applicant’s unit participated in Operation Just Cause during the period 20 December 1989 through 12 January 1990.  It cannot be determined from the record whether the applicant deployed to Panama with his unit.

6.  On 4 January 1990, the applicant’s commander informed him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct (abuse of illegal drugs).

7.  On 4 January 1990, the applicant consulted with legal counsel.  He was advised of the basis for the separation action, its effects, and his rights.  He waived his rights and did not make a statement in his own behalf.

8.  The separation action was processed through the applicant’s chain of command.  On 22 January 1990, the approval authority approved the applicant’s discharge with a GD.

9.  On 26 January 1990, the applicant was discharged with a GD under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct – abuse of illegal drugs.  He had 4 years, 5 months, and 20 days of creditable active Federal service and no lost time.  He also had an Army Achievement Medal.


10.  There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade within that Board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, which includes abuse of illegal drugs, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct upon discovery of a drug offense.

12.  Army Regulation 635-200 also provides, in paragraph 3-7a, that an HD 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his discharge from a GD to an HD.

2.  The applicant was a drug abuser prior to his unit ever deploying to Panama.  He was reduced for those drug offenses prior to his unit ever deploying to Panama.  Drug abuse is inconsistent with Army values and does not meet the acceptable standards of conduct for Soldiers.  His GD is more than appropriate.

3.  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)                                         AR20090000622



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ABCMR Record of Proceedings (cont)                                         AR20090000622



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