IN THE CASE OF:	  

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090014555 


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 he is in the process of becoming a U.S. citizen.  He states he is a law abiding, hard working, former service member of the U.S. Army.  He states he made some very foolish choices when he was young and would reenter the service today at age 45 if he could.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 21 July 1989 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 personnel records show he enlisted in the Regular Army at age 22 on 3 February 1987 for a period of 4 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 63W (Wheel Vehicle Repairer).

3.  On 23 November 1987, the applicant was assigned to the 507th Maintenance Company, 2nd Battalion (PATRIOT), 7th Air Defense Artillery, at Fort Bliss, TX.

4.  On 6 October 1988, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana on or about 25 July 1988.

5.  On 24 April 1989, the applicant accepted NJP under Article 15, UCMJ, for wrongful use of marijuana on or about 8 March 1989.

6.  On 27 April 1989, the applicant's commander notified him that action was being initiated to separate him under the provisions of paragraph 14-12c of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) for misconduct - abuse of illegal drugs.  The commander stated the reason for his proposed action was that he had positive urinalyses for tetrahydrocannibinol on 27 July 1988 and 8 March 1989.  The commander advised the applicant of his right to consult with counsel, his right to obtain copies of documents that would be sent to the separation authority supporting the proposed separation action, to request a hearing before an administrative separation board, to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge.  The commander also advised the applicant he was recommending that he receive a general discharge.

7.  On 1 June 1989, the applicant submitted a statement acknowledging he had been advised by counsel of the basis for the contemplated separation action for abuse of illegal drugs.  The applicant did not submit statements in his own behalf. 
He requested a personal appearance before an administrative separation board and he requested representation by counsel.  The applicant acknowledged that as a result of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.

8.  The applicant waived consideration of his case before an administrative separation board contingent on his receiving a characterization or description of separation no less favorable than honorable.

9.  On 2 June 1989, the applicant's commander recommended he be separated from the U.S. Army prior to the expiration of his term of service due to misconduct - drug abuse - under the provisions of chapter 14 of Army Regulation 635-200 and that he receive a general discharge under honorable conditions.  The commander stated Army regulation requires the processing for discharge of a Soldier when he or she has had two positive urinalyses.  He recommended that rehabilitative requirements be waived in this case.

10.  On 22 June 1989, the appropriate authority disapproved the applicant's request for a conditional waiver, approved a waiver of rehabilitative transfer, and approved the applicant's discharge under the provisions of paragraph 14-12c of Army Regulation 635-200 with a general discharge under honorable conditions.

11.  On 21 July 1989, the applicant was discharged under the provisions of paragraph 14-12c of Army Regulation 635-200 by reason of misconduct - drug abuse.  He had completed 2 years, 5 months, and 19 days of active service that was characterized as under honorable conditions.

12.  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.

13.  Army Regulation 635-200, in effect at the time, specified that if a Soldier was being considered for an administrative discharge wherein the award of an under other than honorable conditions discharge was contemplated or if the individual had more than 6 years of service at the time the discharge action was initiated, the individual may request a hearing by a board of officers.  However, if a general or honorable discharge was to be awarded and the individual has less than 6 years of service at the time the discharge action is initiated, the Soldier does not have the right to appear before a board of officers.  In all cases, the individual has the right to consult with military or civilian counsel of his choice and any matters to be considered by the separation authority may be submitted in writing at the time he is officially notified of the recommended separation action.  A reasonable period of time is allowed to make such consultations with counsel and to submit any matters to be considered.

14.  Paragraph 14-12c of Army Regulation 635-200, in effect at the time, dealt with separation for various types of misconduct, which included drug abuse, and provided 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 was normally considered appropriate.

15.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was young and made foolish choices.  He contends he is now in the process of becoming a U.S. citizen and that his discharge should be upgraded to honorable.

2.  The applicant was 22 years of age at the time of his enlistment.  At the time of his first drug offense the applicant had over 1 year in the Army.  Therefore, he was well-informed of the Army's policy concerning drug usage and the consequences thereof.  Many Soldiers were enlisted at a younger age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly-issued discharge.

3.  The applicant had less than 6 years of service at the time discharge action was initiated and he was given a general discharge.  Therefore, he was not entitled to an administrative separation board.

4.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

5.  The two positive urinalyses the applicant received clearly show he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  After having been retained in the service after his first offense, he continued to his use of illegal drugs.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or significant achievement.  Therefore, his continued misconduct does not qualify him for an honorable discharge.

6.  The ABCMR does not upgrade a properly-issued discharge based solely on the passage of time or for the purpose establishing eligibility for other benefits.

7.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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)                                         AR20090014555



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ABCMR Record of Proceedings (cont)                                         AR20090014555



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