IN THE CASE OF:	  

		BOARD DATE:	        21 MAY 2009

		DOCKET NUMBER:  AR20090003154 


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 discharge under honorable conditions (general) be upgraded to an honorable discharge.

2.  The applicant states that he is 55 years old and that he has paid his dues for his indiscretions.  He states that he would like for his grandchildren to never know about this indiscretion.  He states that there were no other indiscretions in his entire Army history.

3.  The applicant provides in support of his application, 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.  On 14 June 1977, the applicant enlisted in the Regular Army in Harrisburg, Pennsylvania, for 4 years, in the pay grade E-1.  He successfully completed his training as an armor crewman.

3.  He was promoted to the pay grade of E-2 on 14 December 1977; he was promoted to the pay grade of E-3 on 14 June 1978; he was promoted to the pay grade of E-4 on 14 September 1978; and he was promoted to the pay grade of E-5 on 11 April 1980.

4.  On 3 March 1981, the applicant reenlisted in the Army for 6 years, in the pay grade of E-5.  On 25 May 1982, he was promoted to the pay grade of E-6.

5.  On 23 December 1983, nonjudicial punishment (NJP) was imposed against the applicant for illegal use of marijuana in the hashish form on or about 5 October 1983.  His punishment consisted of a reduction to the pay grade of E-5 and a forfeiture of pay in the amount of $450.00 per month for 2 months (first month’s forfeiture suspended for 6 months.)

6.  On 4 January 1984, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12d, due to illegal drug use (marijuana).  The commander cited a urine sample provided by the applicant that tested positive for Tetrahydrocannabinol (THC) as a basis for his recommendation.

7.  The applicant acknowledged receipt of the notification on 4 January 1984 and he waived his right to consult with counsel, to appear before a board of officers, and to submit a statement in his own behalf.

8.  The appropriate authority approved the recommendation for discharge on 2 April 1984.  Accordingly, on 10 May 1984, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-12d, due to drug abuse.  He had completed 6 years, 10 months, and 27 days of net active service and he was furnished a General Discharge Certificate.

9.  A review of the applicant’s records does not show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  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.  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.

11.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

12.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to honorable based on his current age and overall record of service.

2.  His contentions have been noted.  However, the applicant was discharged for misconduct, due to drug abuse.  He was discharged in accordance with the applicable regulation and, based on the nature of his offense, a discharge under other than honorable conditions is normally considered appropriate.

3.  It appears that the applicant was furnished a discharge under honorable conditions based on his overall record of service as opposed to being furnished a discharge under other than honorable conditions as provided for by regulation.  

4.  The applicant’s age has been considered.  However, his age is not sufficiently mitigating to warrant the relief requested and considering the nature of offense and the type of discharge that he could have received, the character of his service is not too harsh.

5.  In order to justify correction of a military record the applicant must show 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.

6. 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.




      _______ _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)                                         AR20090003154



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ABCMR Record of Proceedings (cont)                                         AR20090003154



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