BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090009297 


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 be upgraded to an honorable discharge.

2.  The applicant states that the items found in the car did not belong to him and that he was never given a drug test.

3.  The applicant provides no additional documentation.

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.  Having prior active service in the Regular Army (RA), the applicant enlisted in the RA in Atlanta, Georgia, on 20 June 1989 for 4 years in the pay grade of E-4.  He had been awarded a food service specialist military occupational specialty during his initial period of enlistment.  He was promoted to the pay grade of E-5 on 1 April 1991.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 19 December 1991 for assaulting his wife by striking her on the face with an open hand and closed fist.  His punishment consisted of extra duty for 5 days.

4.  A DA Form 3997 (Military Police Desk Blotter) contained in the applicant’s official record shows that on 25 January 1992 during a random vehicle search conducted at the main gate of Fort Huachuca, Arizona, the applicant’s vehicle was inspected which resulted in the discovery of a controlled substance (suspected marijuana).  The summary shows that the applicant was transported to the military police station where he was advised of his legal rights which he waived and he rendered a verbal statement admitting to the offense.  The applicant was further processed and released to his unit.

5.  On 6 March 1992, NJP was imposed against the applicant for wrongfully using marijuana, a controlled substance.  His punishment consisted of a reduction to the pay grade of E-4 and a forfeiture of pay in the amount of $100.00.  The DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice) shows that the applicant elected not to demand trial by court-martial.  He also elected not to submit an appeal to the punishment that was imposed against him.

6.  On 17 March 1992, the applicant was notified that action to eliminate him from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct had been initiated.  His commander cited use and possession of a controlled substance (marijuana) as a basis for the elimination action.  The applicant acknowledged receipt of the notification on 12 May 1992 and after consulting with counsel he elected not to submit a statement in his own behalf.

7.  The appropriate authority approved the recommendation for separation on 4 June 1992 and directed the issuance of a General Discharge Certificate.  Accordingly, on 12 June 1992 the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct.  He was furnished a General Discharge Certificate.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) that the applicant was furnished at the time of his discharge shows his narrative reason for separation as "misconduct-commission of a serious offense."


9.  On 1 February 1995, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  His request was denied on 9 December 1996; however, the ADRB changed his narrative reason for separation to read "misconduct."

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may 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 is normally considered appropriate.

11.  Paragraph 3-7a of Army Regulation 635-200 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.

12.  Paragraph 3-7b of Army Regulation 635-200 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 general discharge should be upgraded to fully honorable because the marijuana that was found in the car did not belong to him and because he was never given a drug test.

2.  His contentions have been noted.  However, his contentions are not supported by the evidence of record.  The available records show that on 25 January 1992 the applicant’s vehicle was inspected by military authorities and the inspection resulted in the discovery of a controlled substance which was suspected to be marijuana.  His records show that he was transported to the military police station where he was advised of his legal rights.  He waived his rights and rendered a verbal statement admitting to the offense.

3.  At the time that the applicant had NJP imposed against him for wrongfully using marijuana, he could have demanded trial by court-martial if what he is now contending was true at the time.  However, he elected not to demand trial by court-martial and not to appeal the punishment that was imposed against him.  He has provided no evidence to show that the NJP imposed against him was in error or that the information contained therein is untrue.   The fact that he was not provided a drug test is not a basis for upgrading his discharge.

4.  In accordance with the applicable regulation, individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  It appears that the applicant’s overall record of service was considered at the time of his discharge and despite the reason for his discharge, he was furnished a discharge under honorable conditions.

5.  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.

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

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)                                         AR20090009297



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ABCMR Record of Proceedings (cont)                                         AR20090009297



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