IN THE CASE OF:	  

	BOARD DATE:	  8 December 2009

	DOCKET NUMBER:  AR20090009742 


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 upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, he did not get help with his substance abuse problem until it was too late.  He believes he would have been an excellent Soldier had he not been involved with drugs.  He states that he has been clean over 2 years and that he will continue to help potential Soldiers with drug and alcohol problems so they will not experience the difficulties he had with substance abuse.  He also states that he is continuing with his after care.  He further states that he would like to pursue a course of higher education which he cannot do unless his discharge is upgraded.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of 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.  The applicant had completed 4 months and 24 days of prior active service when he enlisted in the Regular Army (RA) on 2 April 1987.  He retained his previous military occupational specialty (MOS) of 31K (Combat Signaler).

3.  On 29 August 1989, the applicant was discharged for the purpose of immediate reenlistment and he reenlisted on 30 August 1989.  The highest rank/grade that he attained during his active duty service was specialist (SPC)/
E-4.

4.  On 9 November 1989, the applicant was command directed to provide a urine sample for testing.  The test results came back positive for cocaine.  The DA Form 5180-R (Urinalysis Custody and Report Record) contained in the applicant’s record lists the type test code as “I.”  At the time the code “I” stood for “Commander directed Individual.”

5.  On 7 December 1989, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongful use of cocaine which was detected by a biochemical testing of a urine sample.  The imposed punishment was reduction to the rank/grade of private (PV1)/E-1, extra duty and restriction for 45 days, and a forfeiture of $349.00 pay per month for 2 months (suspended to be automatically remitted if not vacated before 7 June 1990).  A DA Form 4187 in his record shows he was reduced to
E-1 on 8 December 1989.

6.  The applicant's record also contains documentation of numerous adverse counseling statements for disobeying a noncommissioned officer (NCO), writing worthless checks, two incidents of being drunk on duty, failure to go at the time prescribed to his appointed place of duty, and a letter of reprimand for driving while intoxicated.

7.  On 31 January 1990, the applicant’s unit commander notified him that he was initiating action which could result in his separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14-12c, for misconduct- abuse of illegal drugs.  The applicant was also advised of his rights to consult with legal counsel.  The applicant acknowledged receipt of the unit commander's notification on the same date.

8.  On 1 February 1990, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation action, its effects and the rights available to him, he elected to submit statements in his behalf.  The applicant also acknowledged he understood that if he were issued a general discharge under honorable conditions, he could expect to encounter substantial prejudice in civilian life.

9.  On 1 February 1990, the applicant provided a statement in his own behalf in which he indicated that he was the runner for the NCO in charge of quarters and that he was approached by a staff sergeant who told him that he needed to take a urinalysis.  He stated that he was tested as an individual and not as part of a group.  He further stated that he was told that he was being given the test because he looked like he was losing weight even though he is a slender build individual and had always been.

10.  On 2 February 1990, the applicant’s unit commander recommended that the applicant be separated from the Army under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct- abuse of illegal drugs.  The applicant's commander stated the specific reasons for his recommendation were that the applicant wrongfully used cocaine between 31 October and 9 November 1989, he disobeyed an NCO on 28 October 1989, he uttered worthless checks on
20 and 23 October 1989, he was driving while under the influence on 
22 December 1988, he was drunk on duty on 28 July and 30 October 1988, and he failed to be at his appointed place of duty on 16 July 1988.  The applicant’s defense counsel replied that the urinalysis was obtained without probable cause, without consent, and while the applicant was in the Alcohol Rehabilitation Program.

11.  On 6 February 1990, the administrative separation proceedings were determined to be legally sufficient by the command legal advisor.  The legal advisor did not address the issue of limited use.

12.  On 7 February 1990, the separation authority approved the recommendation for separation and directed that the applicant be separated under the provisions of Army Regulation 635-200, chapter 14-12c, with a general, under honorable conditions discharge.

13.  On 21 February 1990, the applicant was discharged.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14-12c, by reason of misconduct-illegal use of drugs.  Item 24 (Character of Service) of his DD Form 214 shows the entry "UNDER HONORABLE CONDITIONS (GENERAL)."

14.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation deals with the separation of enlisted individuals 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.  An under other than honorable conditions discharge is normally considered appropriate.

16.  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.  

17.  Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program), in effect at the time, prescribed the policies and procedures needed to implement, operate, and evaluate the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  Paragraph 6-4a, the “limited use rule,” prohibits the use of mandatory urine results taken to determine a Soldier’s fitness for duty and the need for counseling and rehabilitation or other medical treatment in conjunction with a Soldier’s participation in ADAPCP for purposes of UCMJ actions or service characterization in separation proceedings.  Paragraph 6-5d, states that a Soldier will be issued an Honorable Discharge Certificate regardless of his or her overall performance of duty, if the discharge is based upon limited use evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  It appears that the applicant was subjected to an individual urinalysis without a specified reason for such testing.  As a result of his positive testing for an illegal drug, he received NJP and subsequent discharge for misconduct - abuse of illegal drugs under the provisions of Army Regulation 635-200, chapter 14.  
Although the applicant could have been discharged under the same chapter for his other instances of misconduct, i.e., disobeying a noncommissioned officer (NCO), writing worthless checks, two incidents of being drunk on duty, failure to go at the time prescribed to his appointed place of duty, and a letter of reprimand for driving while intoxicated, he was discharged for abuse of illegal drugs based on the limited use evidence.

3.  Under the provisions of Army Regulation 600-85, paragraph 6-5d, a Soldier will be issued an Honorable Discharge Certificate regardless of his or her overall performance of duty, if the discharge is based upon "limited use" evidence.  Therefore, the applicant is entitled to an upgrade of his general, under honorable conditions discharge to an honorable discharge.

BOARD VOTE:

____x____  ____x____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting from item 24 of his DD Form 214 for the period ending                 21 February 1990 the entry "UNDER HONORABLE CONDITIONS (GENERAL)" and replacing it with the entry "HONORABLE"; and

	b.  issuing him an Honorable Discharge Certificate with an effective date of   21 February 1990.



      ____________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)                                         AR20090009742



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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