IN THE CASE OF:	  

		BOARD DATE:	        20 August 2009

		DOCKET NUMBER:  AR20090005396 


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 under other than honorable discharge be upgraded to a fully honorable discharge.  

2.  The applicant states that his military record shows many accomplishments during his 13 years of service with no disciplinary actions or courts-martial.  At the time of his separation from the military, four noncommissioned officers (NCO’s) went before the board of officers and three received honorable discharges.  He was the only one reduced to the rank of private and separated with an under other than honorable conditions discharge.

3.  The applicant provides no additional documentation in support of this case.

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 on 7 June 1971 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty (MOS) 67U (Medium Helicopter Repairer) and later awarded the MOS 67W (Aircraft Quality Control Supervisor).  

3.  The applicant completed numerous military courses, to include the Advanced Noncommissioned Officer Course (ANCOC) and he was awarded the Army Commendation Medal, the Armed Forces Expeditionary Medal, and four awards of the Army Good Conduct Medal.  The highest rank he achieved was staff sergeant (SSG).

4.  On 23 February 1984, the applicant received a Letter of Reprimand for being positive for marijuana on a urinalysis test.

5.  The applicant’s commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200, chapter 14 for misconduct.  The reason cited by the commander was the applicant tested positive for illegal drugs.

6.  On 9 March 1984, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of chapter 14, Army Regulation 635-200.  The applicant requested counsel and requested a hearing by a board of officers.

7.  A DA Form 1574 (Report of Proceedings by Investigating Officer (Board of Officers)) shows the board was held on 15 May 1984 and the board members recommended the applicant be separated for misconduct and issued an Under Other Than Honorable Conditions Discharge Certificate.

8.  After the board of officers, the applicant submitted a statement.  He stated that the board’s recommendations were grossly unfair.  The standard of proof to which he was held by the board was much less stringent than that required at both Article 15 proceedings and during courts-martial actions.  All of his prior good service and achievements were seemingly disregarded while the system "purged" itself.  

9.  The applicant further stated that he did not use marijuana.  Yet to show the inconsistencies of the board proceedings, another NCO in his unit admitted the use of marijuana and his board recommended the issuance of an Honorable Discharge Certificate.  

10.  On 7 August 1984, the appropriate authority approved the recommendation and directed that the applicant receive an Under Other Than Honorable Conditions Discharge Certificate.  On 14 August 1984, he was discharged in the pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 14, Misconduct - Drug Abuse after completing a total of 13 years, 2 months, and
8 days of total active service.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Paragraph 
14-12c specified commission of a serious offense and paragraph 14-12d specified abuse of illegal drugs.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.

12.  Paragraph 14-12(2)d of this regulation also provided for the separation of Soldiers for commission of a serious offense, such as the abuse of illegal drugs.  It provided that individuals identified as first time drug abusers, grades E-5 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could 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 was normally considered appropriate.

13.  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.  

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.





DISCUSSION AND CONCLUSIONS:

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

2.  The applicant was a SSG and his mandatory unit urinalysis tested positive for marijuana.  Based on the positive test results, his commander initiated separation action under the provisions of chapter 14, Army Regulation 635-200, for misconduct.

3.  The applicant consulted with counsel and requested a hearing before an administrative separation board.  After reviewing the facts and interviewing a number of witnesses, the board of officers found the applicant had used illegal drugs and recommended that he be reduced and separated with an under other than honorable conditions discharge in accordance with chapter 14, Army Regulation 635-200.

4.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is appropriate considering the drug offense he committed.

5.  When evaluating a request for correction of military records, each case is considered on its own merits.  The Board considers the facts and circumstances relevant only to the case at hand.  Another NCO’s characterization of service has no bearing on the applicant’s characterization of service.  The applicant was a senior NCO.  He understood the drug abuse policy and he was responsible for other Soldiers that were subordinate to him.

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)                                         AR20090005396



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090005396



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1