IN THE CASE OF:	

		BOARD DATE:	15 September 2009    

		DOCKET NUMBER:  AR20090003175 


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 be upgraded to an honorable discharge.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident in 13 years of service in which he had served honorably.  He states his discharge was based on an illegal urinalysis test.

3.  The applicant provides no additional evidence or official documentation in support of his application.

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 personnel records show he enlisted in the Regular Army on 24 May 1978 for a period of 3 years with 5 years, 11 months, and 16 days of prior active military service that was characterized as honorable.  He reenlisted on 16 December 1980 and on 12 January 1984.  He was promoted to staff sergeant/pay grade E-6 effective 1 August 1982.

3.  On 3 April 1984, the applicant was assigned to Company B, Walter Reed Army Medical Center, Washington, DC.

4.  On 14 August 1984, the applicant pled guilty and was found guilty by a special court-martial of being absent without leave from 23 April 1984 to 11 May 1984.  His sentence consisted of a forfeiture of $250.00 per month for 6 months and extra duty for 60 days.

5.  On 17 September 1984, the convening authority approved only so much of the sentence that provided for forfeiture of $250.00 pay per month for 1 month.

6.  On 18 June 1985, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongful use of some amount of cocaine.

7.  On 18 June 1985, the applicant's commander notified him that action was being initiated to separate him because he had been found to have used cocaine based on a urine sample he submitted on 12 February 1985.  The commander advised the applicant of his right to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.  The commander also advised the applicant that the proposed separation could result in a general discharge or an honorable discharge.

8.  On 18 June 1985, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) and its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  The applicant waived consideration of his case by an administrative separation board and a personal appearance before an administrative separation board.  He submitted a statement in his own behalf.  The applicant acknowledged he could expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions.

9.  On 20 June 1985, the applicant's proposed administrative separation was reviewed by an officer of the Judge Advocate General's (JAG) Corps.  The JAG officer determined the proposed separation was legally proper and all procedural requirements had been met.  The JAG officer stated the urine sample provided by the applicant was tested at the Armed Forces Institute of Pathology, Walter Reed Army Medical Center, on 28 February 1985 and was found to be positive for cocaine.  He stated the sample was retested and again found to be positive for cocaine.  He stated the evidence of record indicated that the urinalysis was done properly.  The JAG officer recommended the applicant be discharged and that he receive a general discharge.

10.  On 10 July 1985, the applicant's commander recommended him for discharge due to misconduct - abuse of illegal drugs.  Specifically, the applicant was found to have used cocaine based on a urine sample he submitted on 12 February 1985.

11.  On 12 July 1985, the appropriate authority approved the recommendation for discharge under the provisions of chapter 14 of Army Regulation 635-200 and directed that the applicant be issued a General Discharge Certificate.

12.  On 17 July 1985, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - drug abuse. He had completed 1 year, 6 months, and 6 days of active service on this enlistment that was characterized as under honorable conditions.  He had 18 days of time lost.

13.  There is no indication that 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 sets forth the basic authority for the separation of enlisted personnel.  This 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.

15.  Army Regulation 635-200 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge was inequitable and that it was based on an illegal urinalysis test.

2.  The applicant's discharge for illegal drug use was in accordance with Army Regulation 635-200 wherein it stated that individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  There is no evidence the applicant was treated any differently in his processing for discharge.  Therefore, it is determined that his discharge was equitable.

3.  A JAG officer determined the urinalysis wherein the applicant's test proved positive was conducted properly.  The applicant has submitted no evidence to support his contention that the urinalysis was illegal.  Therefore, in the absence of evidence to the contrary it is determined the urinalysis was conducted properly.

4.  The applicant received a general discharge under honorable conditions when a discharge under other than honorable conditions was normally appropriate under the provisions of chapter 14 of Army Regulation 635-200.  Therefore, it is apparent the applicant's commander considered the applicant's overall record of service when he recommended a general discharge instead of a discharge under other than honorable conditions.

5.  The evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

6.  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.

7.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to 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)                                         AR20090003175



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ABCMR Record of Proceedings (cont)                                         AR20090003175



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