IN THE CASE OF:
BOARD DATE: 23 June 2009
DOCKET NUMBER: AR20090003101
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 be upgraded to fully honorable.
2. The applicant states, in effect, that since he was following directives to have drug counseling, he was improperly discharged.
3. The applicant does not provide anything in support of his request.
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's military records show that he enlisted in the U.S. Army Reserve (USAR) for assignment to a troop program unit on 3 October 1985.
3. The applicant was awarded the military occupational specialty of military policeman and he was promoted to pay grade E-3.
4. On 27 August 1990, the applicant's commander forwarded a request to discharge the applicant. The commander stated that the applicant tested positive for marijuana on a drug test held on 9 September 1989. The applicant was counseled and sought rehabilitation from an addiction service. However, he never returned to the unit after the counseling nor did the unit receive any notification that the applicant successfully completed the rehabilitation program.
5. On 9 July 1991, the applicant's commander notified the applicant that he was recommending him for discharge due to misconduct and the applicant was advised of his rights in conjunction with that recommendation. The notification was sent by certified mail and the applicant signed for the notification.
6. On 14 January 1992, the applicant was separated with a general discharge.
7. Army Regulation 135-178 sets forth the basic authority for the separation of Reserve enlisted personnel. Chapter 7, in effect at the time, 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. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 may 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 is normally considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. While the applicant may have enrolled in an addiction service, there is no evidence that he successfully completed that rehabilitation program.
2. In addition, the applicant never returned to his unit after he was counseled about having a positive urinalysis.
3. As such, the applicant's commander was well within his rights to initiate action to discharge the applicant due to misconduct, drug abuse.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20090003101
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