IN THE CASE OF:	  

		BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100009001 


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 his general under honorable conditions discharge be upgraded to fully honorable.

2.  The applicant states the following:

* His record is in error because it was unjust
* He was discharged for unwillingly eating a pastry that was laced with hashish
* He provided proof before a judicial panel 
* He tasted desserts at a barbeque sponsored by German nationals that were baked with hashish
* He tested positive for a small amount of THC [tetrahydrocannabinol] during a random urinalysis test
* He had never previously tested positive for any illicit drug
* He was considered a model Soldier with a career in the military
* A German witness testified during his hearing that he did not intend to damage or tarnish his (the applicant's) career 
* His First sergeant, platoon sergeant, and other civilians also testified about his overall behavior as an outstanding Soldier

3.  The applicant provides no additional documents 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.  After having prior active and inactive service, the applicant enlisted in the Regular Army on 8 February 1989.  

3.  On 2 June 1992, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using marijuana between 2 March 1992 and 2 April 1992.  

4.  The company commander notified the applicant of separation action under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct – commission of a serious offense.  The company commander cited the reasons for his proposed action as the applicant’s receipt of a Field Grade Article 15 on    2 June 1992 and charge of assault consummated by battery on 8 July 1992.  The applicant was advised of his rights.

5.  The applicant consulted with legal counsel, voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving characterization of service no less favorable than general under honorable conditions, and did not submit statements in his own behalf.  

6.  The company commander indicated the applicant tested positive on three consecutive urinalysis tests.  

7.  The separation authority directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct – commission of a serious offense with issuance of a General Discharge Certificate.  

8.  On 16 December 1992, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  He completed 3 years, 10 months, and 9 days of creditable active service during the period under review.  

9.  On 16 April 1998, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

10.  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 include 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.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

11.  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’s contention in regard to his record being in error and unjust is acknowledged.  However, the evidence of record does not confirm that an error or injustice exists in this case.  

2.  The applicant contends he was discharged for unwillingly eating a pastry that was laced with hashish.  He tasted desserts at a barbeque sponsored by German nationals that were baked with hashish.  However, the applicant’s service record does not contain sufficient evidence on which to substantiate his claims.  In addition, his commander indicated he had tested positive on three consecutive urinalysis tests, indicating he abused an illegal drug on more than just that one, dessert-tasting occasion.  Further, he was charged with assault consummated by battery.

3.  A discharge under other than honorable conditions (UOTHC) was normally appropriate for a Soldier discharged under chapter 14 for misconduct.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of a fully honorable discharge and appropriately characterized his service as general under honorable conditions.

4.  After review of the evidence of this case, it is determined that the applicant has not presented sufficient evidence which warrants changing his general under honorable conditions discharge to fully honorable.

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)                                         AR20100009001





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)