IN THE CASE OF:	  

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090011323 


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, under honorable conditions, be upgraded to an honorable discharge.  

2.  The applicant states that his discharge was inequitable because it was based on one isolated incident in 41 months of service with no adverse action.   

3.  The applicant provides no additional documentation 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's military records show he enlisted in the Delayed Entry Program on 5 January 1990.  He enlisted in the Regular Army on 6 March 1990, in pay grade E-1, for 3 years.  He completed basic combat training and advanced individual training and he was awarded military occupational specialty 12B (combat engineer).  He served in Germany from 29 June 1990 to 24 June 1992.  He was promoted to pay grade E-4 on 1 June 1992.

3.  On 11 May 1993, the applicant accepted punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the wrongful use of marijuana between 28 February and 30 March 1993.  His punishment included a reduction to pay grade E-2, a forfeiture of $456.00 pay per month for 2 months, and 45 days of extra duty.  He did not appeal the punishment.

4.  The applicant was reduced to pay grade E-2 on 11 May 1993.

5.  A Report of Mental Status Evaluation, dated 26 May 1993, shows the applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented, his mood or affect was unremarkable, his thinking process clear, his thought content was normal and his memory was good.  The evaluating psychologist, an Army Medical Service Corps officer, found the applicant to be mentally responsible and considered him to have the mental capacity to understand and participate in separation proceedings.  He was cleared for any administrative action deemed appropriate.

6.  On 15 June 1993, the company commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separation), chapter 14, paragraph 14-12c, for commission of a serious offense.  He advised the applicant that he was recommending that he be separated because he had wrongfully used marijuana, a controlled substance, between 28 February and 30 March 1993.  He also advised the applicant of his rights and that he was recommending he receive a general discharge, under honorable conditions.

7.  On 15 June 1993, the applicant, after consulting with counsel, acknowledged receipt of the contemplated action to separate him for commission of a serious offense under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c.  He also acknowledged that he was not entitled to have his case heard by a board of officers since he was not being considered for discharge under other than honorable conditions.  He elected not to submit a statement in his own behalf.

8.  On 22 June 1993, the applicant's company commander recommended he be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general discharge, under honorable conditions.

9.  On 14 July 1993, the appropriate separation authority approved the applicant's discharge and directed the issuance of a General Discharge Certificate.  

10.  On 6 August 1993, the applicant was accordingly discharged from active duty, in pay grade E-2, under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct-commission of a serious offense, with a general discharge, under honorable conditions.  He was credited with completing 3 years, 5 months, and 1 day of net active service.

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

12.  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 prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  

13.  Paragraph 14-12c(2) 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.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

14.  Army Regulation 635-200, paragraph 3-7a, further provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered; however, they do not support a change to his general discharge, under honorable conditions.  While serving in the pay grade of E-4, he accepted punishment under Article 15, UCMJ in May 1993, for the wrongful use of marijuana.  Regulatory guidance in effect at the time provided for the separation of Soldiers in pay grades below E-5 after a first drug offense.  The applicant was advised that his Article 15 for wrongfully using marijuana was the basis for the proposed separation action.  

2.  It appears that the applicant's overall record was taken into consideration by the separation authority.  Under normal circumstances he could have been reduced to the lowest enlisted rank and separated with an under other than honorable conditions discharge.  

3.  The evidence shows the applicant’s misconduct diminished the quality of his overall service below that meriting a fully honorable discharge.  He was properly separated for misconduct, commission of a serious offense, and he has submitted neither probative evidence nor a convincing argument in support of his request. 

4.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise. 

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)                                         AR20090011323





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ABCMR Record of Proceedings (cont)                                         AR20090011323



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