IN THE CASE OF:	  

		BOARD DATE:	        25 August 2009

		DOCKET NUMBER:  AR20090003844 


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, under honorable conditions discharge be upgraded to honorable.  He also requests that his narrative reason for separation be changed.

2.  The applicant states that he has been out of the Army for 22 years, that he would like to apply for Federal employment, that he served 9 1/2 years with a good record, that he made a mistake, and that obtaining employment is difficult with his current narrative reason for separation.  

3.  The applicant provides no documentary evidence 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 enlisted in the Regular Army (RA) on 21 January 1977 and trained as a radio operator and later as a station technician controller.  He was promoted to sergeant (SGT)/E-5, effective 1 January 1980.  On 12 December 1980, he received a lateral appointment to specialist five (SP5)/E-5.  On
1 October 1985, he received a lateral appointment back to SGT/E-5.

3.  On 15 April 1986, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c, for misconduct (abuse of illegal drugs).  The unit commander cited that the applicant was identified as a drug abuser (marijuana) on 27 September 1985 through an unannounced urinalysis and that he was found in possession of 4 marijuana plants, along with suspected drug paraphernalia, in his local economy quarters on 3 December 1985.

4.  On 15 April 1986, the applicant consulted with counsel, waived a board of officers, and acknowledged that he might encounter substantial prejudice in civilian life if an under other than honorable conditions discharge were issued.

5.  On 14 May 1986, the separation authority approved the recommendation for discharge and directed the issuance of a general, under honorable conditions discharge.

6.  Accordingly, the applicant was discharged on 5 June 1986 with a general, under honorable conditions discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (abuse of illegal drugs).  He had served a total of 9 years, 4 months, and 16 days of creditable active service.

7.  Item 25 (Separation Authority) on the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry, "AR [Army Regulation] 635-200, PARA [paragraph] 14-12c.”  Item 26 (Separation Code) on his DD Form 214 shows the entry, "JKK."  Item 28 on his DD Form 214 shows the entry, "MISCONDUCT – ABUSE OF ILLEGAL DRUGS.”

8.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Section III of Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  The regulation states, in 
pertinent part, that abuse of illegal drugs is serious misconduct.  It also states, in pertinent part, that first-time drug offenders, Soldiers in grades E-5 to E-9, will be processed for separation upon discovery of a drug offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  

10.  Army Regulation 635-200, paragraph 3-7a, 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.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code “JKK” is “Misconduct – Drug Abuse."  

DISCUSSION AND CONCLUSIONS:

1.  A discharge or narrative reason for separation is not upgraded for the purpose of obtaining employment opportunities.  

2.  Evidence of record shows the applicant, a SGT, was discharged for misconduct due to commission of a serious offense (abuse of illegal drugs).  As a result, his record did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  The applicant’s narrative reason for separation was administratively correct and in conformance with applicable regulations.  

6.  Based on the foregoing, there is no basis for granting the applicant's requested relief.
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)                                         AR20090003844



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ABCMR Record of Proceedings (cont)                                         AR20090003844



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