IN THE CASE OF:	  

		BOARD DATE:	    24 June 2010

		DOCKET NUMBER:  AR20090021192 


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 under other than honorable conditions discharge be upgraded.  

2.  The applicant states that his military record shows he had exemplary conduct during his prior enlistments and that his discharge should be upgraded to reflect that conduct.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 23 June 1986; two Honorable Discharge certificates, dated 30 July 1980 and 31 July 1983; and 569th Personnel Service Company Permanent Orders 152-1, dated 6 October 1983. 

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 28 September 1977 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty (MOS) 72G (Automation Data Telecommunication Center Operator) and later awarded MOS 72E (Telecommunication Center Operator).  

3.  The applicant was initially trained as an Automation Data Telecommunication Center Operator.  He had completed the Noncommissioned Officer Professional Development Course, and he had been awarded the Army Good Conduct Medal (second award), along with the Army Service Ribbon and the Overseas Service Ribbon.  The highest rank he achieved was sergeant (SGT)/E-5.  

4.  On 28 March 1985, the applicant’s commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200, chapter 14 for misconduct.  The reason cited by the commander was the applicant tested positive for illegal drugs.

5.  The applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating he had been advised he was being recommended for discharge under the provisions of chapter 14, Army Regulation 635-200.  The applicant requested counsel and requested a hearing by a board of officers.

6.  On 6 December 1985, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana.

7.  A DA Form 4126-R, dated 18 March 1986, shows the applicant was barred from reenlistment after testing positive a third time for illegal drugs.

8.  On 24 March 1986, the applicant accepted NJP under Article 15, UCMJ, for wrongful use of marijuana.

9.  On 26 April 1986, an administrative separation board recommended the applicant be separated for misconduct and issued an Under Other Than Honorable Conditions Discharge Certificate.

10.  The approval of the board's recommendation is not available.  On 23 June 1986, the applicant was discharged in the rank of private (PVT)/E-1, under the provisions of Army Regulation 635-200, Chapter 14, Misconduct - Drug Abuse after completing a total of 8 years, 8 months, and 26 days of total active service.

11.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 4 November 1987, the ADRB reviewed and denied the applicant's request for an upgrade.  

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Paragraph 
14-12c specified commission of a serious offense and paragraph 14-12d specified abuse of illegal drugs.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.

13.  Army Regulation 635-200, paragraph 14-12(2)d of this regulation also provided for the separation of Soldiers for commission of a serious offense, such as the abuse of illegal drugs.  It provided that individuals identified as first time drug abusers, grades E-5 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.

14.  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 contends his under other than honorable conditions discharge should be upgraded based on his prior good conduct and achievements.  His prior good conduct and achievements are noteworthy.  However, good conduct and achievements alone are not a basis for upgrading a discharge and, upon review, the applicant's good conduct and achievements are not sufficient to mitigate his indiscipline. 

2.  The applicant was a SGT and his mandatory unit urinalysis tested positive for marijuana.  Based on the positive test results, his commander initiated separation action under the provisions of chapter 14, Army Regulation 635-200, for misconduct.

3.  The applicant consulted with counsel and requested a hearing before an administrative separation board.  After reviewing the facts, the board of officers found the applicant had used illegal drugs and recommended that he be separated with an under other than honorable conditions discharge in accordance with chapter 14, Army Regulation 635-200.

4.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would have jeopardized his rights.

5.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

6.  The applicant's record shows he received two Article 15s, he was barred from reenlistment, and he had tested positive for drugs on three separate occasions. Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of a general or 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)                                         AR20090021192



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ABCMR Record of Proceedings (cont)                                         AR20090021192



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