IN THE CASE OF:	

		BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090018347 


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 be upgraded to honorable.

2.  The applicant states that he feels he has paid for his mistakes made as a teenager with years of discreditable information on job and credit applications.  He served overseas in a combat zone and only had trouble at times of rest.  He had no other drug-related crimes, no felonies, and has worked under random drug testing.

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.  On 4 June 1982, the applicant enlisted in the Regular Army.  He completed his initial training to include the Basic Airborne Course and was awarded military occupational specialty 71D1P (legal clerk with parachutist qualification).

3.  On 14 November 1982, the applicant was assigned to Fort Bragg, North Carolina.

4.  On 14 February 1983, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongful possession of marijuana.  The punishment included reduction to pay grade E-1 (suspended), a forfeiture of $200.00 pay per month for 2 months, and 30 days in the correctional custody facility.

5.  On 1 March 1984, the applicant was advanced to specialist four/pay 
grade E-4.

6.  On 12 December 1984, the applicant accepted NJP for being derelict in the performance of his duties and for wrongful use of marijuana.  The punishment included reduction to pay grade E-2, forfeiture of $334.00 pay per month for 2 months (1 month suspended), and 45 days of extra duty.

7.  On 14 December 1984, the applicant's commander recommended separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct.  The commander based his action on the applicant's two offenses of illegal use of drugs.  The applicant had been counseled by his chain of command 11 times concerning his drug use, substandard duty performance, and failure to maintain sufficient funds.  The commander stated that the applicant's repeated use of drugs was a serious threat to good order and discipline and did not warrant a rehabilitative transfer.

8.  On 17 December 1984, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected to make a statement in his own behalf, but it is not available for review.

9.  On 18 December 1984, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.

10.  Accordingly, on 4 January 1985, the applicant was discharged under honorable conditions.  He had completed 2 years, 7 months, and 1 day of creditable active service.  The narrative reason for his separation was "misconduct - drug abuse."
11.  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.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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 that could result in a punitive discharge, convictions by civil authorities, and desertion or absence 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.

13.  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 that his general discharge should be upgraded to honorable because he has paid for his mistakes made as a teenager with years of bad language on job and credit applications.

2.  The record shows two NJP's for possession/use of marijuana.  Clearly, these were drug offenses.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons were therefore appropriate considering all of the facts of the case.

5.  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 this requirement.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20090017458



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018347



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1