IN THE CASE OF:	

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20090012565 


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, in effect, upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that due to mental illness at the time of his discharge, he was addicted to drugs but he has overcome his addiction.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge for Active duty) for the periods ending 8 May 1981 and 3 July 1984 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 initially enlisted in the Regular Army (RA) on 14 June 1977 and he was honorably discharged on 8 June 1981 by reason of "short length of time remaining on active duty precludes reassignment."  After a break in service, he enlisted in the RA on 29 December 1982.

3.  The applicant’s military record reveals a disciplinary history that includes his acceptance of nonjudicial punishment on 25 August 1983 for wrongful use of marijuana on 16 June 1983.  His punishment included reduction to the rank/
grade of private first class (PFC)/E-3, forfeiture of $177.00 pay, and restriction and extra duty for 14 days.

4.  The applicant’s military record also shows he accepted nonjudicial punishment on 9 May 1984 for wrongful possession of some amount of marijuana on 22 February and 2 March 1984.  His punishment included reduction to the rank/grade of private (PV1)/E-1, forfeiture of $298.00 pay per month for 2 months, and restriction and extra duty for 45 days.

5.  On 24 May 1984 the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12c, commission of a serious offense, with an under other than honorable conditions discharge.  The specific reason for the applicant’s elimination recommendation was for his wrongful possession of marijuana on 22 February 1984 and 2 March 1984.

6.  On the same date the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board and he declined to submit statements in his own behalf.

7.  On 20 June 1984 the separation authority approved the separation action and directed that he receive an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 3 July 1984 the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – drug abuse, with an under other than honorable conditions discharge.  The DD Form 214 he was issued at the time confirms he held the rank/grade PV1/E-1 and he had completed a total of 4 years, 6 months, and 30 days of active military service.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

11.  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.

12.  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.  There is no evidence of record and the applicant did not provide any evidence that shows he suffered from mental illness or drug addiction, that he informed his chain of command of his mental illness and drug addiction, or that he received or requested any treatment for mental illness or drug addiction during his military service.

2.  The evidence of record shows that the applicant was discharged with an under other than honorable conditions discharge by reason of misconduct - drug abuse.  The applicant’s record shows that he violated the Army’s established drug abuse policy and possessed or used illegal drugs, which compromised the trust and confidence placed in him as a Soldier.  The applicant had a duty to support and abide by the Army’s drug policies.  By abusing illegal drugs, the applicant risked his military career.  Therefore, his service does not warrant an upgrade of his discharge to a general, under honorable conditions or an honorable 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)                                         AR20090012565



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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