BOARD DATE: 19 May 2010
DOCKET NUMBER: AR20090020571
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 upgrade of his general under honorable conditions discharge to an honorable discharge.
2. The applicant states stress and conditions not treated led to the point where he had no control over his behavior.
3. The applicant does not provide any additional documents.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he enlisted in the Regular Army on 28 October 1977, he was awarded military occupational specialty 19K (M1 Abrams Armor Crewman), and he was promoted to the rank/grade of sergeant (SGT)/E-5.
3. On 7 June 1990, the applicant tested positive for THC, the active ingredient in marijuana.
4. On 3 August 1990, the applicant accepted a field grade level nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana. His punishment included a reduction to specialist (SPC)/E-4, forfeiture of $300.00 per month for two months, and extra duty and restriction for 45 days.
5. After being notified by his commander of his intent to recommend his discharge due to misconduct - drug abuse and of his rights in conjunction with that recommendation, the applicant waived his rights including the right to have a board of officers consider whether he should be discharged.
6. His immediate and intermediate commander recommended approval with issuance of a general under honorable conditions discharge.
7. The recommendation for discharge was subsequently approved by the appropriate separation authority, who directed the issuance of a General Discharge Certificate.
8. Accordingly, on 29 August 1990, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c (Commission of a serious offense), by reason of misconduct - abuse of illegal drugs.
9. 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. The issuance of 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 members 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. There is no evidence or indication that the applicant had no control over his behavior because of stress or conditions not treated.
2. The applicant, a noncommissioned officer (NCO), tested positive for THC. As an NCO, that was a particularly serious offense.
3. The applicant chose to waive his rights rather than present his case before a board of officers. If he had mitigating circumstances, this would have been the time to present those issues. Although an under other than honorable conditions discharge is normally issued under Army Regulation 635-200, paragraph 14-12c, it appears that his chain of command and final separation authority considered his record of service and they recommended and approved a general under honorable conditions discharge.
4. In view of the foregoing, there is no basis for granting the applicant's requested 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.
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