IN THE CASE OF:	

		BOARD DATE:	 15 April 2010 

		DOCKET NUMBER:  AR20090019071 


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 changed to show he was honorably retired.

2.  The applicant states he was issued a general discharge but continued to appeal his discharge action.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 show he enlisted in the Regular Army (RA) on 28 June 1967 and held military occupational specialty (MOS) 31M (Radio Relay and Carrier Operator).  

3.  He served through multiple extensions or reenlistments in the RA, within and outside of the continental United States, held MOS 76P (Materiel Control and Accounting Specialist), and was promoted to staff sergeant/E-6.  

4.  While assigned to the 710th Maintenance Battalion, 10th Mountain Division, Fort Drum, NY, on 26 February 1986, he participated in a urinalysis and his urine sample tested positive for marijuana. 

5.  On 30 April 1986, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between 27 January and 26 February 1986.  His punishment consisted of a reduction to sergeant/E-5 and a forfeiture of $614.00 pay for
2 months (suspended until 27 October 1986).  He appealed his punishment but his appeal was denied.

6.  On 5 June 1986, his immediate commander initiated a Bar to Reenlistment Certificate against him citing several previous instances of NJP, skill qualification test (SQT) failure, lack of potential, and apparent involvement with drugs.  He was provided a copy of this bar and he elected not to submit a statement on his own behalf.  His bar was ultimately approved by the approval authority.

7.  On 5 June 1986, his immediate commander notified the applicant of his intention to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for misconduct-commission of a serious offense.  The specific reasons cited were his prior NJP, SQT failure, and abuse of illegal drugs.

8.  On 12 June 1986, he acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a separation board and a personal appearance before a separation board, and he submitted a statement in his own behalf.  In his statement, he disagreed with the results of the 30 April 1986 Article 15 as well as the 5 June 1986 Bar to Reenlistment Certificate.  He also denied his involvement with drugs. 

9.  He further indicated that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge, under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

10.  On 16 June 1986, his immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct.  The immediate commander indicated the applicant had demonstrated he was unqualified for further service.

11.  On 16 and 17 June 1986, his intermediate and senior commanders recommended approval of his discharge for misconduct.

12.  On 28 July 1986, an administrative separation board convened at Fort Drum. The board found the applicant undesirable for further retention in the military due to misconduct – wrongful use of drugs and recommended that he be issued a general discharge.

13.  On an unknown date in 1986, a military attorney reviewed the administrative board proceedings with its findings and recommendations and found it legally sufficient.

14.  On or around 25 August 1986, Headquarters, Department of the Army approved the applicant's elimination proceedings under the provisions of Army Regulation 635-200, chapter 14, and ordered the applicant be issued a general discharge.  

15.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged on 11 September 1986 under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct-commission of a serious offense with a general discharge.  He had completed a total of 19 years and 1 day of creditable active military service.

16.  On 14 October 1988, the Army Discharge Review Board directed that the applicant's narrative reason for separation be changed from "Misconduct – Commission of a Serious Offense" to "Misconduct – Abuse of Illegal Drugs" but denied an upgrade of his discharge.

17.  On 3 January 1990, the ABCMR denied his request for removal of all reference to the use of illegal drugs from his records.  


18.  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, and convictions by civil authorities.  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 appropriate for a Soldier discharged under this chapter.

19.  Army Regulation 635-200, paragraph 14-12c provides for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs.  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.  

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 of that regulation sets policies and procedures for voluntary retirement of Soldiers because of length of service.  Paragraph 12-3 pertains to general provisions of laws governing retirement.  It states, in pertinent part, that years of service for retirement are computed by adding all active federal service in the Armed Forces and service computed under Title 10, U.S. Code (USC), section 3925.

21.  Paragraph 12-4 implements Title 10, USC, section 3914 which governs 
20-year retirement by a Soldier of the Regular Army, the Army National Guard of the United States and the U.S. Army Reserve.  In pertinent part, the regulation provides that a request for retirement may be submitted by a Soldier who has completed 20 years, but less than 30 years, of AFS in the U.S. Armed Forces.  Approval of the request for retirement will be at the discretion of the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be honorably retired.

2.  The evidence of record shows the applicant tested positive for marijuana during a urinalysis and was punished under Article 15, UCMJ, for misconduct.  He was subsequently informed by his commander that action was being taken to separate him from the service, under the provisions of chapter 14-2c of Army Regulation 635-200.  He was advised of his rights and elected an administrative separation board.  The board recommended that he be separated with a general discharge and the approval authority approved this recommendation.  He was accordingly discharged with 19 years and 1 day of total active service.
3.  He was discharged for cause.  He was a senior noncommissioned officer and he was aware or should have been aware of the Army's drug abuse policy as well as the consequences regarding misconduct of this nature.  He was experienced enough to know right from wrong and he knew or should have known his acts of misconduct would not be condoned by the Army.  In addition that was not his first record of misconduct.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case. 

5.  Since the applicant had not completed 20 years of active service at the time of discharge he did not qualify for retirement and he does not now.  Therefore, he is not entitled to relief.

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)                                         AR20090019071



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ABCMR Record of Proceedings (cont)                                         AR20090019071



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