IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20100000374 


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.

2.  The applicant states that he served well from 1983 to 1991, that he earned two Good Conduct Medals and two Overseas Service Ribbons and attained the rank of sergeant.  However, he had one mishap (positive urinalysis for marijuana) which he regrets and desires to have his discharge upgraded.  He further states that he has led a productive life and is now in a nursing program in Florida.

3.  The applicant provides a letter explaining his application and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 in San Diego, California on 2 August 1983 for a period of 3 years and training as an armor crewman.  He completed his one-station unit training at Fort Knox, Kentucky and was transferred to Germany.  He was advanced to the pay grade of E-4 on 2 January 1985.

3.  He completed his tour in Germany and was transferred to Fort Riley, Kansas.  On 16 March 1986, he reenlisted for a period of 5 years and a selective reenlistment bonus.  He was promoted to the pay grade of E-5 on 5 October 1987.

4.  He served a tour in Korea from 1989 to 1990 and was transferred to Fort Stewart, Georgia in October 1990.

5.  On 6 September 1991, the applicant’s commander initiated a bar to reenlistment against the applicant because he tested positive for marijuana during a urinalysis on 20 August 1991.  The applicant declined the opportunity to submit matters in his own behalf and the bar was approved on 11 September 1991.

6.  On 16 September 1991, nonjudicial punishment was imposed against him by the battalion commander for testing positive for marijuana on 20 August 1991.  His punishment consisted of a reduction to the pay grade of E-4, a forfeiture of pay, extra duty and restriction.  He did not appeal the punishment.

7.  On 16 September 1991, the applicant’s commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 14 for commission of a serious offense.  He cited as the basis for his recommendation that the applicant had tested positive during a urinalysis for marijuana on 20 August 1991.

8  After consulting with defense counsel, the applicant waived his right to appear before an administrative separation board provided he received at least a general discharge.

9.  The appropriate authority approved the recommendation for discharge on 30 September 1991 and directed that he be furnished a General Discharge Certificate.

10.  Accordingly, the applicant was discharged under honorable conditions on 24 October 1991 under the provisions of Army Regulation 635-200, paragraph 14-12d, for misconduct – abuse of illegal drugs.  He had served 8 years, 


2 months, and 23 days of total active service.  There is no evidence that the applicant received any personal decorations for meritorious service or achievement.

11.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Accordingly, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question.

3.  The applicant’s contentions have been noted.  However, they are not sufficiently mitigating to warrant an upgrade of his discharge to fully honorable.  The applicant was serving as a noncommissioned officer (NCO) at the time he tested positive for marijuana and he violated the trust placed in him as a leader and NCO.   

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100000374





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100000374



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1