BOARD DATE:	  9 September 2010 

		DOCKET NUMBER:  AR20100009686 


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 discharge be upgraded to honorable.

2.  The applicant states: 

* Had he known it was possible to have his discharge changed he would have done this long ago
* He described his military career and service in Germany
While stationed at Fort Bragg, North Carolina he was called into the commander's office and told he had failed a drug test in Germany
* He was informed as an E-5 his only option was to have a retest but since 3 months had expired the sample had been destroyed so there could be no retest 
* He was told he would receive an Article 15, be reduced to E-4, and fined
* He spoke to a Judge Advocate General (JAG) representative and the JAG representative wanted him to go to a court-martial because he was close to his expiration term of service date and it would take longer to get the necessary paperwork from Germany for the court-martial and the Army could not hold him past his contract date
* He spoke to his parents who in turn spoke to their Senator in North Carolina
* The Senator advised him to leave the service since he had so little time left 
* He begged his commander to test him again so he could prove he was not using any kind of drugs but he would not
* He was ordered to report to a drug counselor and the counselor did not believe he had taken any drugs
* He firmly believes had this happened in either of the two units he was assigned to in Germany the officers and noncommissioned officers in his command would have known this was not true
* He was also told by the JAG representative a number of drug and alcohol noncommissioned officers were under investigation for swapping test samples to protect their friends
* His first sergeant and sergeant major believed him but at the time in question they were in the field and when they returned action had already been taken
* He has had only one instance involving law enforcement since his discharge (his ex-girlfriend had him arrested for stalking but it was thrown out of court)
* He holds a concealed weapon permit in North Carolina, he was given custody of his two sons, he does not drink alcohol, he does not abuse drugs, and he attends church services on a regular basis            

3.  The applicant provides no documentary evidence 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 enlisted in the Regular Army on 29 November 1982 for a period of 4 years.  He successfully completed training and was awarded military occupational specialty 36H (dial/manual central office repairer).  He attained the rank of sergeant on 13 December 1985.

3.  On 20 August 1986, nonjudicial punishment was imposed against the applicant for using marijuana.  His punishment consisted of a reduction to E-4, a forfeiture of pay (partially suspended), and extra duty.

4.  On 20 August 1986, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct (abuse of illegal drugs).

5.  On 21 August 1986, the applicant was advised by counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200, chapter 14, and its effects, of the rights available to him, and the effect of any action taken by him in waving his rights.  He acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He elected to submit a statement in his own behalf.  On 26 August 1986, the applicant rescinded his election to submit a statement. 

6.  On 21 August 1986, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, chapter 14, for misconduct (abuse of illegal drugs).  He cited the applicant tested positive for marijuana on a urinalysis.

7.  The separation authority approved the recommendation for discharge (misconduct - abuse of illegal drugs) and directed the issuance of a general discharge.

8.  Accordingly, the applicant was discharged under honorable conditions on 
5 September 1986 under the provisions of Army Regulation 635-200, paragraph 
14-12c(2), for misconduct (abuse of illegal drugs).  He had served a total of 3 years, 9 months, and 7 days of creditable active service.

9.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.
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.  Good post service conduct alone is normally not a basis for upgrading a discharge.

2.  The applicant's contentions were carefully considered.  However, his record of service included one nonjudicial punishment for using marijuana.  The applicant was a sergeant.  It appears he had the opportunity to plead his case twice at the time, either at a court-martial as recommended by a JAG representative or with a statement in his own behalf.  However, it appears he elected not to go with the JAG representative's advice and he rescinded his option to submit a statement.  At this point in time, 25 years after his separation, the only evidence to corroborate his contentions is his own statement.  Therefore, there is insufficient evidence that would warrant an honorable discharge.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

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)                                         AR20100009686



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)