BOARD DATE:	 21 July 2009 

		DOCKET NUMBER:  AR20090003906 


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, in effect, that his general discharge be upgraded to "Honorable."

2.  The applicant states, in effect, that he was told by his battalion commander that after 6 months of good behavior his discharge would be changed to "Honorable."  He adds that after 21 years, he has not been in any trouble.

3.  The applicant submitted no additional documentation 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 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 U.S. Army Reserve on 22 March 1985.  On 2 April 1985, he enlisted in the Regular Army.  He completed basic combat training at Fort Jackson, South Carolina, and advanced individual training at Fort Gordon, Georgia.  On completion of his training he was awarded military occupational specialty (MOS) 31K (Combat Signaler).

3.  The applicant and other members of his unit underwent urinalysis testing on 21 April 1987.  On 12 May 1987, the applicant's urine specimen was determined to be positive for Tetrahydrocannabinol (THC).  The applicant's unit commander was notified of the results in a DA Form 2496 (Disposition Form), dated 18 May 1987, Subject:  Results of Biochemical Testing.

4.  The applicant underwent a mental status evaluation on 28 May 1987.  The applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or affect was unremarkable, his thinking process was clear, and his thought content was normal.  The applicant's memory was good.  The mental status evaluator found him to be mentally responsible and he was considered to have the mental capacity to understand and participate in separation proceedings.  The applicant was also found to meet retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3.

5.  A Standard Form (SF) Form 88 (Report of Medical Examination) and an SF 93 (Report of Medical History) show the applicant underwent a separation physical examination on 28 May 1987.  The applicant was found qualified for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 14.

6.  On 3 June 1987, the applicant received nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully using some amount of marijuana during the period from 11 April through 21 April 1987.  The imposed punishment was reduction to pay grade E-1, a forfeiture of $300.00 pay per month for 2 months, restriction for 25 days and extra duties for 20 days.

7.  On 8 June 1987, in a letter from the applicant's chain of command, Headquarters, 1st Brigade, 82d Airborne Division notified him that action was being taken to discharge him from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c.  The reason stated in the notification was, in effect, that he had provided a urine specimen on 21 April 1987 which had tested positive for marijuana.  He was a first time offender and serving in pay grade E-1 through E-4 at the time and although processing him for separation was optional, his service was characterized as unsatisfactory.  The chain of command 


recommended that the applicant be issued a general discharge, under honorable conditions.  The applicant was advised, in effect, he was not entitled to a board of officers because an under other than honorable conditions discharge was not being recommended and he did not have more than 6 years of service.  The applicant was notified he had the right to consult with counsel of the US Army Trial Defense Service or to consult with a civilian attorney at his own expense.  He was also advised of other rights that were available to him, to include the opportunity to submit statements in his own behalf.

8.  On 8 June 1987, the applicant acknowledged his commander's notification of intention to discharge him from the Army.  On this same date, the applicant waived consideration of his case and a personal appearance before a board of officers.  The applicant requested the right to consult with counsel and representation by counsel and to make and submit statements in his own behalf.  However, no statement made by the applicant was found among the documents which made up the separation "packet."

9.  The applicant's discharge was approved by the appropriate authority on 10 June 1987.  The approval authority directed that the applicant receive a general discharge under honorable conditions.  A recommendation was also made against the applicant's transfer to the Individual Ready Reserve (IRR) because it was the approving authority's opinion that he would not be useful for service in the event of full mobilization.

10.  The applicant was discharged in the rank and pay grade of Private, E-1, on 19 June 1987, under the provisions of Army Regulation 635-200, paragraph 14-12c, Section III, for misconduct - drug abuse.  On the date of discharge, the applicant had completed 2 years, 2 months, and 18 days of net active service with no lost time. 

11.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that during his service he was awarded the Army Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Parachutist Badge.  The record contains no documentary evidence of acts of valor or achievement which warrant special recognition.

12.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.



13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, then in effect, established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

14.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant requests that his general discharge under honorable conditions be upgraded to a fully honorable discharge.

3.  The evidence shows that when the applicant and other members of his unit underwent urine testing for indications of drug abuse, he tested positive for the use of marijuana.  The applicant was serving in pay grade E-4 at the time of his positive urinalysis.  Even though his command had the option of retaining him on active duty and rehabilitating him, the chain of command opted to initiate discharge action because his performance of duty/service was unsatisfactory.

4.  The applicant now states, in effect, he was told by his battalion commander that after 6 months of good behavior his discharge would be changed to a fully honorable discharge; however, the Army does not now have, nor has it ever had, a policy of automatically upgrading a discharge based on the passage of time.

5.  From review of the documentary evidence related to the applicant's discharge, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  The applicant's DD Form 214 was correctly completed to reflect that he had been discharged before his normal expiration of term of service for misconduct due to drug abuse.

6.  In view of the foregoing, there is no basis for granting the applicant's request for a fully 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)                                         AR20090003906



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003906



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1