IN THE CASE OF:	  

		BOARD DATE: 	        18 June 2009

		DOCKET NUMBER:  AR20090003901 


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 from the South Carolina Army National Guard (SCARNG) be upgraded to an honorable discharge. 

2.  The applicant states that this was the only negative event in his military service and that he is now a mechanic certified by the Federal Aviation Administration.  He states, in effect, that his discharge makes him ineligible for civilian employment on any military installation.

3.  The applicant did not provide any supporting documents with 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.  Official records show that the applicant enlisted in the SCARNG on 7 October 1993 for a 6-year period of service as a member of an Army National Guard unit and 2 years in the Individual Ready Reserve.  He was ordered to active duty on 3 January 1994 for basic and advanced individual training and released from active duty on 9 June 1994.  Upon the conclusion of this training period, the applicant was awarded military occupational specialty 63T (Bradley Fighting Vehicle Systems Mechanic).  Records show the applicant was assigned to Detachment 1, Headquarters and Headquarters Company, 1st Battalion, 118th Infantry, SCARNG. 

3.  On 13 November 1994, the applicant's unit conducted an unannounced drug urinalysis screening test in accordance with the SCARNG Drug Demand Reduction Program. 

4.  On 6 December 1994, the Office of the Adjutant General, SCARNG, notified the applicant's chain of commander that the applicant had tested positive for tetrahydrocannabinol (THC) on 13 November 1994.

5.  On 24 February 1995, the applicant was informed and counseled by his company commander that he had tested positive for THC on 13 November 1994. The company commander informed the applicant that he was eligible for drug rehabilitation as a first-time drug offender.  He told the applicant that the drug rehabilitation counseling must be done at a state substance rehabilitation program and at his own personal expense.  The unit commander further advised the applicant that failure to complete a drug rehabilitation program would necessitate immediate discharge proceedings.  He was advised that he had the right to have his drug test redone by an independent laboratory and at his personal expense.  The applicant was advised that if he chose rehabilitation he could remain a member of his unit and the SCARNG.    

6.  On 24 February 1995, the applicant chose to accept rehabilitation at his own personal expense at a state certified facility, to remain an active member of his SCARNG unit, and he did not request a urinalysis retest. 

7.  On 6 January "1995" (i.e., 1996), the applicant's company commander recommended that the applicant be separated due to misconduct, abuse of illegal drugs under the provisions of Army Regulation 135-178 (Enlisted Separations), chapter 7.  The applicant was advised that he had the right to consult with an appointed counsel or civilian counsel at his personal expense.  The applicant was further advised he had to acknowledge this memorandum 

within 30 calendar days of receipt.  Failure to respond to this memorandum and request consideration by an Administrative Separation Board would be considered a waiver of that right. 

8.  On 24 January 1996, the applicant's clinical counselor at a state certified drug rehabilitation program told the applicant's company commander that the applicant had enrolled in the Department of Alcohol and Other Drug Abuse Services of Charleston County, South Carolina, on 14 March 1995.  The clinical counselor wrote that the applicant kept four individual counseling appointments and that he missed seven appointments.  The applicant submitted three urine samples throughout the rehabilitation period with two negative drug test results and one positive result for THC on 4 April 1995.

9.  There are no records to show that the applicant consulted with counsel or acknowledged receipt of the separation notification memorandum.

10.  On 18 March 1996, the applicant was discharged from the SCARNG and as a Reserve of the Army with a general discharge under the provisions of Army Regulation 135-178 for misconduct, abuse of illegal drugs and under the provisions of National Guard Regulation 600-200, paragraph 8-26r, alcohol or drug abuse rehabilitation failure.  

11.  National Guard Regulation 600-200 (Enlisted Personnel Management) provides for the separation of enlisted personnel of the Army National Guard (ARNG).  Chapter 8 of this regulation, in effect at the time, governed the separation for alcohol or drug abuse rehabilitation failure if the Soldier did not provide their commander with quarterly documents showing satisfactory participation in a drug rehabilitation program.  A general discharge is issued to a Soldier who is concurrently discharged from the ARNG and as a Reserve of the Army and whose discharge from such service is under honorable conditions, but whose military record is not sufficiently meritorious to warrant an honorable discharge.  

12.  Army Regulation 135-178 provides for the separation of enlisted personnel of the Army Reserve and ARNG.  Chapter 7 of this regulation, in effect at the time, governed separation for misconduct for disqualifying patterns or acts of conduct which included abuse of illegal drugs.  When discharged under this provision, the characterization of service was normally under other than honorable conditions, except that an honorable or general discharge might be furnished if warranted by the particular circumstances of the case.  


13.  Army Regulation 135-178, in pertinent part, states that the honorable characterization of service is appropriate when the quality of the Soldier’s service generally meets the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  A general discharge is warranted when significant negative aspects of the Soldier's conduct or performance outweighs positive aspects of the Soldier's military record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge because his current discharge makes him ineligible for civilian employment on military installations. 

2.  The applicant’s record shows he tested positive for THC during an unannounced drug urinalysis.  He was formally counseled by his company commander who recommended drug rehabilitation counseling because the applicant was a first time drug offender.  The applicant failed to regularly attend drug rehabilitation counseling sessions and tested positive for illegal drugs while in drug rehabilitation, thereby nullifying his counseling agreement.  He was notified in writing that he was being considered for discharge do to misconduct, abuse of illegal drugs.  Records show the applicant did not respond to the memorandum within 30 calendar days.  Therefore, separation action was initiated and ordered by the applicant's chain of command.

3.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects the misconduct that resulted in his discharge.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his general discharge.

5.  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 that 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.




      _______ _   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)                                         AR20090003901



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ABCMR Record of Proceedings (cont)                                         AR20090003901



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