BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090020712 


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 under other than honorable conditions (UOTHC) discharge be upgraded to at least a general discharge.

2.  The applicant states that his problems in the Army were due to a manic depressive disorder.  He explains when he was having marital problems some people who lived in Manhattan, KS introduced him to marijuana.  Being a country boy who had never been out of the state of West Virginia he did not know how to deal with the suggestions of the people who lived off base.

3.  Additionally, he states that he has not been able to hold a steady job and he has had very few problems since serving in the military.  But the problems he did have were due to manic depression and a troubled childhood.

4.  The applicant provides eight statements attesting to his demeanor, dependability, work ethic, and his resume.

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 16 February 1984, the applicant enlisted in the Regular Army.  He was awarded the military occupational specialty of food service specialist, and he was promoted to pay grade E-4.

3.  On 9 September 1985, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for wrongful use of marijuana.
On 29 July 1986, the applicant also accepted NJP for wrongful use of marijuana.

4.  On 19 September 1986, the applicant was notified by his commander of his intent to recommend him for discharge due to misconduct – drug abuse based on his positive urinalysis.

5.  The applicant initially requested that a board of officers consider his case.  However, on 24 October 1986, he waived his right to a board of officers.  He also submitted a statement in his own behalf wherein he outlined his good service record, how he was close to completing his enlistment, and how he was stupid to have used marijuana after he had completed drug rehabilitation.  He asked for a general discharge so he could find decent employment after he was separated.

6.  On 19 September 1986, the applicant's commander recommended that the applicant be discharged.  The recommendation was approved by the appropriate authority.  Accordingly, on 5 December 1986, the applicant was issued a UOTHC discharge for misconduct – drug abuse.

7.  Army Regulation 635-200 (Personnel Separations) 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 UOTHC is normally considered appropriate.




8.  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.

9.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant does not contest the validity of the two positive urinalyses.  

2.  The use of illegal drugs is serious misconduct which normally results in a Soldier being issued a UOTHC discharge.  The applicant was provided leniency when his commander opted not to process him for discharge when he first tested positive for marijuana.  His commander had no choice but to process him for discharge after his second positive urinalysis.

3.  While the applicant's post-service conduct is commendable, good post-service conduct is normally insufficient to warrant upgrading a properly issued discharge.

4.  The applicant has not submitted any evidence to show he suffers from manic depressive disorder.  However, even if he did it would not form a basis sufficient to grant his request.  He could have sought medical treatment while on active duty if he was suffering from manic depressive episodes.

5.  In view of the foregoing, there is no basis for granting the applicant's request.










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)                                         AR20090020712



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090020712



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1