IN THE CASE OF:	

		BOARD DATE:	23 July 2009    

		DOCKET NUMBER:  AR20090010209 


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 discharge under honorable conditions (general) be upgraded to a fully honorable discharge.

2.  The applicant states that he departed Fort Carson on or about November 1985 on a 45-day leave and reported to the 25th Infantry Division in January 1986.  He states that his first formation with the unit was a urinalysis and “apparently” he had traces of marijuana in his system.  He states that he was obviously exposed to the drug during his leave in California.  He states that from the day that he joined the Army in 1974 up until the morning that he tested positive, he never used any type of illegal substance especially knowing that his career was headed in a positive direction as he was destined to be promoted to the pay grade of E-7 within a year.  He states that when the results of his urinalysis that was identified as positive for use of marijuana came back, he was shocked and totally embarrassed as he felt as though he had let a lot of people down.  He states that he explained to the first sergeant that the results had to be wrong; however, his first sergeant insisted on the accuracy of the test.  

3.  The applicant states that the Army had recently converted its drug testing to a new type of testing that can detect even the slightest amounts of any drugs in your system.  He states that he understands that while he was on leave in California and Hawaii, he was around civilians and people he didn’t know who were smoking marijuana.  He states that on a couple of occasions he felt a little


light headed, but he had no clue it would be enough to register a positive reading.  He states that since his discharge he has contributed to the community in an attempt to invest his time and to ensure that young people will listen and grasp the idea that gangs and drugs lead nowhere but jails and/or death.  He asks that the offense, his punishment and most of all, the lesson that he learned be considered.  He also asks that the Board keep in mind that he is a first time offender.

3.  The applicant provides a letter addressed to this agency dated 16 January 2009 explaining the events that occurred which led to his discharge from the Army, his conduct while on active duty and his post service conduct.   He also provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  On 28 August 1974, the applicant enlisted in the Regular Army (RA) in Oakland, California, for 4 years, in the pay grade of E-1.  He successfully completed his training as an infantryman.  He remained on active duty through a series of reenlistments and extensions and he was promoted through the ranks to the pay grade of E-6.

3.  The applicant’s records show that on 14 January 1986, the applicant submitted a sample for urinalysis screening which tested positive for tetrahydrocannabinol (THC).

4.  The Criminal Investigation Division (CID) Report of Investigation (ROI) dated 28 February 1986 shows that on 11 February 1986 an investigation was initiated regarding the applicant’s wrongful possession and use of marijuana.  According to the CID ROI, during the applicant’s initial interview with a special agent (SA) he denied any involvement with marijuana during the time frame 
14 December 1985 through 14 January 1986.  The CID ROI shows that during a subsequent interview with the SA on 19 February 1986, it was disclosed that on 1 January 1986, the applicant wrongfully possessed and used marijuana.

5.  On 3 March 1986, nonjudicial punishment (NJP) was imposed against the applicant for wrongful use of marijuana on or about 14 January 1986.  His punishment consisted of a reduction of the pay grade of E-5, a forfeiture of pay in the amount of $559.00 per month for 2 months (suspended to be automatically remitted if not vacated before 4 April 1986).  Having been afforded the opportunity to consult with counsel, the applicant opted not to demand trial by court-martial.

6.  On 4 March 1986, the applicant was counseled by his company commander for misconduct, which merited discharge under the provisions of Army Regulation 635-200, chapter 14.  The applicant was informed of the reason for his counseling; and that separation would be initiated due to being identified as a first time illegal drug offender.  He was also informed of the type of discharge certificates that he may receive; the basis for the issuance of each type of discharge certificate; and the possible effects of the various types of discharges as they pertain to reenlistment, civilian employment, veterans’ benefits and related matters.  He was told that it was unlikely that the character of his separation would be upgraded by the Army Discharge Review Board (ADRB).

7.  The applicant was notified on 4 March 1986 that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14.  His commander cited first time illegal drug offender (E-5 and above) as a basis for his recommendation for discharge.  The applicant acknowledged receipt of the notification on 4 March 1986 and, after consulting with counsel, he waived his right to have his case considered by an administrative separation board and to have a personal appearance before an administrative board and he opted not to submit a statement in his own behalf.

8.  The appropriate authority approved the recommendation for discharge on 21 March 1986 and he recommended the issuance of a discharge under honorable conditions (general).

9.  Accordingly, on 18 April 1986, the applicant was discharged under honorable conditions (general), under the provisions of Army Regulation 6325-200, chapter 14, due to misconduct, commission of a serious offense.

10.  A review of the applicant’s record does not show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200 (Enlisted Personnel) 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.

12.  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.  

13.  Paragraph 3-7b of Army Regulation 65-200 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.

2.  His contentions have been noted.  However, the applicant was discharged for misconduct, commission of a serious offense.  He was discharged in accordance with the applicable regulation and, based on the nature of his offenses, a discharge under other than honorable conditions is normally considered appropriate.

3.  The applicant had NJP imposed against him for wrongful use of marijuana and according to the CID ROI, it was disclosed that he wrongfully possessed and used marijuana on 1 January 1986.  The contentions that he is currently asserting are not substantiated by the evidence of record.  

4.  His post service conduct has also been considered; however, it is not sufficiently mitigating to warrant the requested relief.  Considering the nature of his offense, the type of discharge that he received is not too harsh

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)                                         AR20090010209



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ABCMR Record of Proceedings (cont)                                         AR20090010209



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