IN THE CASE OF:	  

		BOARD DATE:	    17 February 2010

		DOCKET NUMBER:  AR20090015915 


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, that his general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, his misconduct was the result of pain related to service-connected injuries and he was never offered rehabilitation.  He states that he now has a 50-percent disability for service-connected conditions.

3.  The applicant provides no additional documentary evidence in support of this 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 record shows he enlisted in the Regular Army and entered active duty on 17 July 1980.  Upon completion of training, he was awarded military occupational specialty 76Y (Unit Supply Specialist).

3.  The applicant reenlisted on 16 March 1983 for 4 years and again on 26 January 1988 for 6 years.

4.  The applicant's record shows that he was promoted to sergeant (SGT)/E-5 on 3 May 1985 and that this is the highest rank he attained while serving on active duty.  It also shows that during his active duty tenure, he earned the following awards:  Army Service Ribbon, Overseas Service Ribbon, Army Commendation Medal, Army Good Conduct Medal (2nd Award), Noncommissioned Officer Professional Development Ribbon, Army Achievement Medal, and Expert Marksmanship Qualification Badge with Rifle Bar.

5.  The applicant's official military personnel file is void of any medical treatment records or other documents that indicate the applicant was suffering from any disqualifying physical disability that would have supported his separation processing through medical channels during his active duty tenure.

6.  On 1 March 1988, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully using marijuana while serving in the rank of SGT/E-5.

7.  On 16 March 1988, the applicant was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense for abuse of illegal drugs.  The applicant's unit commander based his recommendation for separation on the positive findings for marijuana in the urine specimen submitted by the applicant on 14 January 1988.  The applicant acknowledged the contemplated action on 24 March 1988 and requested consideration of his case by an administrative separation board.

8.  On 28 April 1988, an administrative separation board convened and recommended the applicant be separated from the service with a general discharge.

9.  On 18 May 1988, the separation authority approved the administrative separation board's proceedings and on 9 June 1988 directed the applicant be separated from the Army and issued a general discharge.  On 20 June 1988, the applicant was discharged accordingly.

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

11.  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.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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's contention that the reason for his discharge was that he was suffering from pain and was offered no rehabilitation was carefully considered.  However, the evidence of record is void of any indication that the applicant suffered from a disabling medical condition at the time of his discharge processing that would have supporting his disability separation processing through medical channels.  Further, the applicant failed to provide any independent evidence to corroborate his claim.

2.  The evidence of record confirms the applicant's separation processing was accomplished in compliance with applicable regulations.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's disciplinary history includes his acceptance of NJP for wrongfully using marijuana.  His use of illegal drugs clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, his discharge accurately reflects the overall quality of his service and there is an insufficient evidentiary basis to support granting the requested relief.

4.  In order to justify a 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 this 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)                                         AR20090015915



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ABCMR Record of Proceedings (cont)                                         AR20090015915



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