IN THE CASE OF:
BOARD DATE: 20 May 2010
DOCKET NUMBER: AR20090017305
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 his discharge be upgraded from a general to a fully honorable discharge.
2. The applicant states that the incident happened 17 years ago and there has not been another occurrence.
3. The applicant provides no additional documentation 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 enlisted in the Regular Army on 9 November 1991.
3. The applicant's military record reveals a disciplinary history that includes his acceptance of nonjudicial punishment on 13 October 1992 for wrongful use of marijuana between 2 August 1992 and 2 September 1992.
4. On 30 November 1992 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. The specific reason for the applicant's elimination recommendation was for testing positive for the use of marijuana.
5. 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.
6. On 9 December 1992 the separation authority approved the separation action and directed that he receive an Under Other Than Honorable Conditions Discharge Certificate.
7. On 23 December 1992 the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct drug abuse with a general under honorable conditions discharge. The DD Form 214 he was issued at the time shows he completed a total of 2 years, 11 months, and 5 days of active military service.
8. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
9. 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.
10. 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:
The evidence of record shows that the applicant was discharged with a general under 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 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) AR20090017305
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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