IN THE CASE OF:	  

		BOARD DATE:	  6 July 2010

		DOCKET NUMBER:  AR20100000287 


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 upgrade to general under honorable conditions.

2.  The applicant states he believes his discharge is unjust because Army Regulations at the time stated that an E-1 to E-4 should be given a general discharge for a positive urinalysis.  Also, in review of current regulations (Army Regulation 135-178 (Separation of Enlisted Personnel), paragraphs 11-2 and 2-9; Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program), paragraph 10-6; and Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 9-4), he still believes he should have been discharged under honorable conditions.  During his enlistment he received two Good Conduct Medals and had no other disciplinary actions.  Also, he was held beyond his expiration of term of service date in order to be punished.  He served his country and wants the records to correctly indicate that he served honorably because it's the right thing to do.

3.  The applicant provides no additional documentation in support of his application.

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 military records show that he enlisted in the Delayed Entry Program on 10 April 1979.  He enlisted in the Regular Army in pay grade E-1 on 5 June 1979 for 3 years.  He completed training and was awarded military occupational specialty 51B (Carpentry and Masonry Specialist).  He was promoted to pay grade E-4 on 1 June 1981.  He reenlisted on 11 March 1982 for 3 years and on 3 November 1982 extended his enlistment for 12 months.  He served in Germany from 15 March 1983 to 10 March 1986.

3.  On 9 April 1984, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the wrongful use of marijuana/hashish on or about 12 March 1984.  His punishment included a reduction to pay grade E-3, a forfeiture of $396.00 pay per month for 2 months, and 30 days of correctional confinement	.  He did not appeal the punishment.

4.  On 21 March 1985, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for the wrongful use of marijuana/hashish on or about 12 December 1984.  His punishment included a reduction to pay grade E-3, a forfeiture of $412.00 pay per month for 2 months, and 30 days of extra duty and restriction.  He did not appeal the punishment and was reduced to pay grade E-3 on 21 March 1985.

5.  On 23 January 1986, the company commander notified the applicant of the proposed separation action to separate him from the U.S. Army under the provisions of Army Regulation 635-200, paragraph 14-2, dated 15 October 1985. 
The specific allegations on which the proposed action was based were that the applicant was charged with and found guilty for wrongful use of marijuana/hashish on 13 March 1984 and wrongful use of marijuana/hashish on 12 December 1984.  The company commander stated that during the applicant's enrollment in the Berlin Counseling Center he had another positive urinalysis test for marijuana.  Considering the amount of time in rehabilitation and the second positive urinalysis results, the applicant's progress had been unsatisfactory.  The applicant was advised he could receive an under other than honorable conditions certificate and of his rights.

6.  On 10 February 1986, the applicant, after consulting with counsel, acknowledged receipt of the proposed separation action for commission of a serious offense under the provisions of Army Regulation 635-200, chapter 14.  The applicant also acknowledged that he might expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions were issued to him.  He elected to appear before a board of officers.

7.  On 7 March 1986, the applicant appeared with counsel before a board of officers.  On 8 March 1986, the board determined the allegation in the notice of proposed separation for abuse of illegal drugs had been supported by a preponderance of the evidence.  The board recommended the applicant be separated for misconduct and issued an under other than honorable conditions discharge.  The results of the board were reviewed and found legally sufficient.

8.  On 8 March 1986, the appropriate separation authority approved the discharge action and directed the issuance of a General Discharge Certificate and reduction to pay grade E-1.

9.  On 11 March 1986, the applicant was discharged from active duty in pay grade E-1 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct for abuse of illegal drugs.  He was credited with completing 6 years, 9 months, and 7 days of net active service.

10.  On 15 August 1997, the Army Discharge Review Board denied his appeal for an upgrade of his discharge.  However, the ADRB determined that the reason and authority should be changed to Army Regulation, paragraph 14-12c(2), for misconduct.  He was issued a new DD Form 214 showing he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct.

11.  Army Regulation 635-200, then in effect, 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 minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.

12.  Paragraph 14-12c(2) of the 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.  The separation authority could direct a general discharge if such a discharge were merited by the Soldier's overall record.

13.  Army Regulation 635-200, paragraph 3-7b, also provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

14.  Army Regulation 635-200, chapter 9, then in effect, provided the authority and procedures for discharging enlisted personnel for alcohol and other drug abuse rehabilitation failure.  Paragraph 9-4 specified that the service member discharged under that section would be characterized as honorable or general.

15.  Army Regulation 135-178 (Enlisted Administrative Separations), then in effect, established the policies and procedures governing the administrative separation of enlisted members from the Army National Guard and the U.S. Army Reserve.

16.  Army Regulation 600-85 (The Army Substance Abuse Program), then in effect, prescribed the policies and procedures needed to implement, operate, and evaluate the Army Alcohol and Drug Abuse Prevention and Control Program.  This edition of the regulation did not contain a chapter 10.  The current version of the regulation, paragraph 10-6, specifies illicit drug use is grounds for disciplinary action under the UCMJ and/or the initiation of administrative separations proceedings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered; however, they do not support a change to his under other than honorable conditions discharge.

2.  While serving in the pay grade E-4, he twice accepted punishment under Article 15, UCMJ, for wrongfully using marijuana.  His company commander recommended he be separated under the provisions of Army Regulation 
635-200, paragraph 14-12c(2), based on the two offenses.  The company commander stated the applicant tested positive during enrollment in a rehabilitation center and his progress had been unsatisfactory.  The applicant was notified of the proposed separation action and elected to have his case heard by a board of officers.  The board recommended he be separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct for abuse of illegal drugs and issued an under other than honorable conditions discharge.

3.  At the time of the applicant's discharge, the issuance of a discharge under other than honorable conditions was normally considered appropriate.  It appears that the applicant's overall record was taken into consideration and his misconduct diminished the quality of his service below that meriting a general discharge.

4.  The applicant has provided no evidence to show that his discharge was unjust.  Without evidence to the contrary, it appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He was properly separated for misconduct for abuse of illegal drugs.

5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge to general under honorable conditions.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

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)                                         AR20100000287



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ABCMR Record of Proceedings (cont)                                         AR20100000287



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