IN THE CASE OF:	  

		BOARD DATE:	       15 September 2009

		DOCKET NUMBER:  AR20090004291 


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 under honorable conditions be upgraded to an honorable discharge.

2.  The applicant essentially states that his discharge should be upgraded because he served honorably.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a self-authored statement, dated 9 February 2009, in support of this 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 records show that he enlisted in the Regular Army on 15 August 1979.  He completed initial entry training at Fort Bliss, Texas, and was awarded military occupational specialty 16D (HAWK Missile Crewmember).  He remained at Fort Bliss for his only permanent duty assignment and progressed in rank and pay grade from private/E-1 to sergeant/E-5 with his last promotion occurring on 1 October 1983 with a date of rank of 4 September 1983.

3.  On 29 August 1985, the applicant accepted nonjudicial punishment (NJP) under the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana on or about 25 June 1985.  His punishment consisted of a reduction in rank and pay grade from sergeant/E-5 to specialist four/E-4, forfeiture of $300.00 pay per month for 1 month, 14 days of restriction, and 45 days of extra duty.  The applicant did not submit matters in defense, mitigation, and/or extenuation, nor did he appeal his punishment.  He also did not demand a trial by court-martial in lieu of this NJP as he had the right to do if he felt he was innocent of the charge.

4.  On 5 September 1985, a psychiatric evaluation was conducted on the applicant and he was essentially cleared for any administrative action deemed appropriate by his command.  A physical examination was also performed on the applicant on this date, and he was found medically qualified for separation.

5.  On 30 September 1985, a Bar to Reenlistment Certificate was imposed against the applicant for the aforementioned offense.  The applicant elected not to submit statements in his own behalf during the processing of this action.

6.  Although the complete facts and circumstances regarding the applicant's discharge, i.e., his complete separation packet, are not contained in his military records, on 29 October 1985 the applicant's commanding officer recommended that separation proceedings be approved for the applicant under the provisions of chapter 14 (Separation for Misconduct), Army Regulation 635-200 (Enlisted Personnel), for misconduct due to abuse of illegal drugs.  He also stated that the applicant was a noncommissioned officer (NCO) who tested positive on a urinalysis test for marijuana.  He further stated that the applicant had previously been a self-referral to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) from 16 April 1984 through 29 May 1984.  Although not present in his separation packet, his commanding officer indicated that the applicant's election of rights was enclosed at the time.

7.  On 5 November 1985, the applicant's battalion commander recommended approval of the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200.  Although he stated that the applicant requested a personal appearance before a board of officers, no evidence of an actual board of officers hearing was present in the applicant's military records.

8.  On 21 February 1986, the proper separation authority approved the applicant's discharge under the provisions of chapter 14, paragraph 14-12c (Commission of a Serious Offense) and 14-12d (Abuse of Illegal Drugs), Army Regulation 635-200, and directed that he be furnished a General Discharge Certificate.  On 19 March 1986, the applicant was discharged accordingly.

9.  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.

10.  The applicant provided a self-authored statement, dated 9 February 2009, in which he essentially admitted that he was tested for substance abuse while in the military and that at the time he was voluntarily going to the ADAPCP because he was concerned about losing the opportunity of becoming a career NCO.  He also contends that his superior NCO's and officers were aware of his substance abuse issue and the treatment he was receiving at the time, but that he was ordered to take a toxicology test which resulted in him being denied treatment for his substance abuse and which ended his dream of having a military career.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense to include abuse of illegal drugs, convictions by civil authorities, and absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.  It also states, in pertinent part, that abuse of illegal drugs is a serious offense and that Soldiers are subject to separation under this paragraph for commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge is or would be authorized for the same or a closely-related offense under the Manual for Courts-Martial.

12.  Army Regulation 635-200, paragraph 3-7a provides, in pertinent part, 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.

13.  Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program), in effect at the time, provided that officers, warrant officers, and enlisted persons in grades E-5 through E-9 who were identified as illegal drug abusers would be processed for separation from the service as these individuals had violated the special trust and confidence the Army had placed in them.  It also provided policy on limited use.  Limited use prohibited the use of, in part, a member's self-referral to the ADAPCP as well as admissions and other evidence concerning illegal drug or alcohol use or possession of drugs incidental to personal use occurring prior to the date of initial referral to the ADAPCP provided it was voluntarily by a member as part of his or her entry into the ADAPCP.  However, the limited use policy does not grant total immunity.  An order from competent authority to submit to urinalysis or a breath test is a lawful order.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge under honorable conditions should be upgraded to an honorable discharge.

2.  The applicant's contention that he was going to ADAPCP at the time he tested positive for marijuana on or about 25 June 1985 was noted.  However, the applicant was only a self-referral to the ADAPCP from 16 April 1984 through 29 May 1984.  As a result, his positive urinalysis for marijuana on or about 25 June 1985, more than 1 year after his ADAPCP treatment, was not covered by the limited use policy.

3.  The evidence of record shows that the applicant accepted NJP under Article 15 of the UCMJ for wrongfully using marijuana which was not protected by the limited use policy in effect at the time.  He also had a bar to reenlistment imposed on him for the aforementioned offense.  By wrongfully using marijuana, the applicant knowingly risked a military career and violated the trust and confidence placed in him as an NCO.  As such, the applicant’s command acted appropriately and in accordance with regulations in effect at the time by initiating action to separate him for the commission of a serious offense and abuse of illegal drugs.  Given the severity of his offense of wrongfully using marijuana while serving as an NCO, the applicant failed to provide evidence which proves that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.

4.  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 this requirement.  As the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel, he is not entitled 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)                                         AR20090004291



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ABCMR Record of Proceedings (cont)                                         AR20090004291



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