IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100008909 


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 an upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states his discharge was based on two Article 15s for testing positive for THC (marijuana).  He also states:

* he was never given a chance at drug counseling
* he tried several times to speak with the battalion commander
* he worked with the Judge Advocate General to rid the battalion of drugs so other Soldiers would not be affected
* he had 19 months of service with no adverse actions

3.  The applicant provides no additional documentary evidence in support of his request.

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 and entered active duty in the Regular Army for a period of 3 years and 14 weeks on 19 November 1991.  Upon completion of training he was awarded military occupational specialty 11B (Infantryman).  He attained the rank of private first class (E-3) on 1 July 1992.

3.  On 1 December 1992, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using cocaine between 20 September and 20 October 1992.  His punishment consisted of reduction to private (E-1), forfeiture of $392.00 pay for 2 months, 45 days of extra duty, and 45 days of restriction.

4.  On 12 January 1993, the applicant received NJP under Article 15, UCMJ, for wrongfully using marijuana between 21 and 26 November 1992.  His punishment consisted of forfeiture of $407.00 pay for 2 months, 45 days of extra duty, and
45 days of restriction.

5.  On 21 January 1993, the applicant's commander notified the applicant that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12c, based on commission of a serious offense (abuse of illegal drugs).  The reasons for his proposed action were that the applicant tested positive for the use of marijuana and cocaine on two urinalysis tests.  The applicant was advised of his rights and of the separation procedures involved.

6.  On 21 January 1993, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

   a.  He acknowledged that military legal counsel for consultation was available to assist him.

   b.  He voluntarily waived consideration of his case by an administrative separation board contingent upon his receipt of a characterization of service or description of separation of no less favorable than under honorable conditions.

    c.  He elected to submit a statement in his own behalf.  In his statement, the applicant acknowledged he had made some mistakes and committed offenses that aren't tolerated in the Army.  He added that other Soldiers had tested positive on two occasions and they received a general discharge.  He requested a general discharge so that his civilian life would not be unduly affected.
   
	d.  He requested representation by counsel, consideration of his case by a board of officers, and personal appearance before a board of officers.

   e.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He was also advised that as a result of the issuance of a discharge under other than honorable conditions he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

   f.  The applicant acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge; however, an act of consideration by either board did not imply that his discharge would be upgraded.

   g.  The applicant placed his signature on the document.

7.  The immediate and intermediate commanders recommended the applicant's conditional waiver be disapproved and that the applicant receive an under other than honorable conditions discharge.  They also recommended that the rehabilitation requirements be waived as further attempts at rehabilitation would not produce the quality Soldier needed in the Army.

8.  On 4 February 1993, after having had the opportunity to consult with his defense counsel, the applicant unconditionally revoked his earlier election of rights and waived his right to have his case presented before an administrative elimination board.

9.  On 5 February 1993, the installation Assistant Chief of Staff, G1/Adjutant General (ACofS, G1/AG), reviewed the applicant's separation action.  He confirmed the applicant had not received any type of Alcohol and Drug Abuse Prevention and Control Program treatment and requested that the rehabilitative requirement be waived.  He also confirmed the applicant had waived presentation of his case before an administrative board.

   a.  The ACofS, G1/AG recommended approval of the separation action.

   b.  The Staff Judge Advocate concurred with the ACofS, G1/AG's recommendation and forwarded the action to the separation authority.

   c.  On 11 February 1993, the separation authority approved the recommendations of the ACofS, G1/AG and Staff Judge Advocate.

10.  On 16 February 1993, the separation authority approved the applicant's separation action and directed that the applicant be given an under other than honorable discharge.

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 3 March 1993 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct based on commission of a serious offense with service characterized as under other than honorable conditions.  At the time he had completed 1 year, 3 months, and 3 days of net active service.

12.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 14 deals with the separation of enlisted Soldiers 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 under other than honorable conditions is normally considered appropriate.
   
   b.  Chapter 3, 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 that his under other than honorable conditions discharge should be upgraded to a general discharge because his discharge was based on two Article 15s for testing positive for marijuana, he was never given a chance at drug counseling or rehabilitation, he tried several times to speak with the battalion commander, he worked with the Judge Advocate General to rid the battalion of drugs so other Soldiers would not be affected, and he had 19 months of service with no adverse actions.

2.  The applicant's contentions were carefully considered.

   a.  The evidence shows the applicant received NJP on two occasions.  The first occasion was for wrongfully using cocaine and the second for wrongfully using marijuana.  Thus, the evidence refutes the applicant's contention that his discharge was based on two incidents of testing positive for marijuana.

   b.  The evidence of record shows that Soldiers in pay grades below E-5 must be processed for separation after a second drug offense.  The evidence also shows the separation authority approved waiver of the rehabilitative requirements in the applicant's case.

   c.  The evidence of record shows the applicant provided a statement that was incorporated into his separation action.  It is reasonable to conclude that the battalion commander considered the applicant's statement in his case.  Thus, the applicant's contention that he was unsuccessful in speaking with the battalion commander about his case is not sufficiently mitigating to warrant relief.

   d.  There is no evidence of record, and the applicant provides insufficient evidence, to support his contention that he worked with the Judge Advocate General to rid the battalion of drugs so other Soldiers would not be affected.

   e.  The evidence shows the applicant entered active duty on 19 November 1991 and he received his first NJP on 1 December 1992; approximately 1 year later.  Thus, the evidence does not support the applicant's contention that he had 19 months of service without any adverse actions.

3.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct based on commission of a serious offense was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the reasons therefore were appropriate and equitable.
4.  The evidence of record shows that during the applicant's period of military service under review he tested positive on two urinalysis tests for the wrongful use of cocaine and marijuana.  Thus, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

5.  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.  Therefore, 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)                                         AR20100008909



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ABCMR Record of Proceedings (cont)                                         AR20100008909



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