IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090021926 


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 a fully honorable discharge.

2.  The applicant states he wants to clear his name from a positive urinalysis.  He was overseas and he was going through a divorce at the time.  Otherwise, his service was excellent.  He just dealt with the situation the wrong way at the time.

3.  The applicant did not provide any additional documentary evidence.

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 shows he enlisted in the Regular Army on 13 February 1979 and held military occupational specialty 63B (Light Wheel Vehicle Mechanic).  He executed a 3-year reenlistment on 9 February 1982 and attained the rank/grade of sergeant/E-5.

3.  His record further shows he served in Germany from 29 May 1979 to 20 October 1981 and from 17 May 1984 to 14 October 1986.  His awards and decorations include the Army Service Ribbon, Overseas Service Ribbon, Army Achievement Medal, Noncommissioned Officer Professional Development Ribbon, Army Commendation Medal, Army Good Conduct Medal (2nd Award), and Driver and Mechanic Badge.

4.  On 29 March 1986, he participated in a unit urinalysis and his urine sample tested positive for marijuana.

5.  On 18 July 1986, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using marijuana.  His punishment consisted of a reduction, a forfeiture of pay, and extra duty.

6.  On 13 August 1986, his immediate commander requested an administrative separation board be scheduled in preparation for the initiation of chapter 14 proceedings against the applicant subsequent to his misconduct for a serious offense (abuse of illegal drugs) under the provisions of Army Regulation 635-200 (Personnel Separations).  However, there is no indication that an administrative separation board was held because the applicant waived his right to an administrative separation board.

7.  On 3 September 1986, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct - abuse of illegal drugs.

8.  On 3 September 1986, he acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and 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 waived his right to as formal hearing in his case contingent upon receiving a general under honorable conditions discharge.

9.  He further indicated he understood that 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.  He elected not to submit a statement on his own behalf.
10.  On 5 September 1986, his immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct - abuse of illegal drugs.

11.  On 13 September 1986, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed he be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 15 October 1986.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he completed 7 years, 8 months, and 3 days of creditable active military service.

12.  There is no indication in his records he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  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.  Specific categories included frequent incidents of a discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority could direct an honorable or general discharge if such was merited by the Soldier's overall record.

14.  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 discharge should be upgraded from general under honorable conditions to fully honorable.

2.  His record of service shows he was a noncommissioned officer when he tested positive for marijuana.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met 

and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His serious misconduct diminished the quality of his service.

3.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  He did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant him the 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.

ABCMR Record of Proceedings (cont)                                         AR20090021926



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ABCMR Record of Proceedings (cont)                                         AR20090021926



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