IN THE CASE OF:	  

		BOARD DATE:	    6 April 2010

		DOCKET NUMBER:  AR20090010399 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states the following:

     a.  Although he made a mistake and smoked marijuana on one occasion, he was an exemplary Soldier.

     b.  After his release from active duty, he continued to live an exemplary life and has not smoked marijuana again.

     c.  His civilian jobs required routine drug testing.

     d.  Army policy at the time was to immediately process for elimination E-5s or above who had a positive drug test, but he was retained to work outside of his military occupational specialty (MOS).

     e.  He had reenlisted in MOS 11B (Infantryman) and was forced to work outside of his MOS which caused him to become depressed and make errors in judgment.  





3.  The applicant provides the following:

* a self-authored statement
* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* copies of certificates received during his military service
* a Criminal Record Search prepared by the Deputy Clerk of Superior Court, Randolph County, North Carolina
* a copy of a Social Security Administration statement
* a copy of his W-2 (Wage and Tax Statement) for 2008
* copies of certificates and other records documenting his civilian accomplishments

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 (RA) on 9 June 1981 and was trained in and awarded MOS 11B.  He reenlisted for a period of 6 years on
13 March 1985.  The record shows he was promoted to E-5 on 6 August 1987.  

3.  The applicant's awards and decorations include the Army Commendation Medal, the Army Achievement Medal, the Army Good Conduct Medal (2nd award), the Noncommissioned Officer Professional Development Ribbon, and the Expert Infantryman Badge.

4.  On 29 November 1989, the applicant participated in a unit urinalysis and his urine sample tested positive for marijuana.

5.  On 18 January 1990, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.  His punishment was reduction to E-4.

6.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 5 February 1990, shows the applicant received a mental status evaluation because he was being considered for discharge due to misconduct.  

7.  The applicant's separation packet includes a statement, dated 15 March 1990, signed by him requesting an honorable discharge instead of a general discharge.  He stated he was guilty of bad judgment, was not a habitual drug user, and had paid for his mistake by losing rank, embarrassing himself and his family, losing his self respect, and ending his military career.  The separation packet also includes statements from one officer and six noncommissioned officers, all dated on or about 15 March 1990, recommending the applicant receive an honorable discharge.  Other than these statements, the record is void of any documentation indicating he was recommended for a general discharge.  

8.  There is no evidence that a separation packet initiated in February 1990 was approved.    

9.  On 17 April 1990, the applicant participated in another urinalysis and his urine sample tested positive for marijuana and cocaine.

10.  On 16 May 1990, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana and cocaine.  His punishment was reduction to E-1, forfeiture of $362 per month for 2 months, 45 days of extra duty, and 45 days of restriction.

11.  The record shows the applicant attempted to appeal the NJP he accepted on 16 May 1990, but did not complete the action.  The record includes a legal opinion stating the NJP was conducted in accordance with the law and was not unjust or disproportionate to the offense committed.

12.  On 23 May 1990, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for misconduct citing his wrongful use of marijuana and cocaine.  His commander also informed him of his intent to recommend discharge under other than honorable conditions.

13.  The applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct and its effect, the rights available to him, the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions and that, as the result of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He waived his right to consideration of his case by an administrative separation board, his right to personal appearance before an administrative board, his right to submit statements on his behalf, and his right to representation by counsel.

14.  On 23 May 1990, the applicant's immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct – abuse of illegal drugs. 

15.  On 3 July 1990, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct – abuse of illegal drugs and directed the applicant’s service be characterized as under other than honorable conditions.  On 18 July 1990, the applicant was discharged accordingly.  He completed 9 years, 1 month, and 
10 days of creditable active military service.

16.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  The applicant provides a self-authored statement in which he asserts the following:

     a.  He is seeking an upgrade of his under than other than honorable conditions discharge to a general discharge because he would like to pursue a career in law enforcement and possibly run for political office.

     b.  Army Regulations at the time stated that individuals in grades E-5 and above would be discharged after one urine sample tested positive for illegal drugs.

     c.  While being processed for separation, he retained access to the arms room, indicating he was trusted by his superiors.

     d.  He was the 2d Infantry Division and 8th Army Noncommissioned Officer of the Year for 1987.  

18.  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.

19.  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's request for upgrade of his discharge was carefully considered and not supported by the evidence in this case.

2.  The record shows the applicant's urine sample tested positive for marijuana and his command initiated separation proceedings against him.  Prior to the completion of the separation action, the applicant again tested positive for illegal drugs.  

3.  On his application, the applicant states that he used marijuana on one occasion.  The record shows that he tested positive for marijuana on 
29 November 1989 and tested positive for marijuana and cocaine on 17 April 1990.    

4.  The applicant’s separation for misconduct was proper and equitable and in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  Based on his record of indiscipline, which includes twice testing positive for illegal drugs, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general 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)                                         AR20090010399





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ABCMR Record of Proceedings (cont)                                         AR20090010399



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