IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100010973 


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 (GD) under honorable conditions be upgraded to an honorable discharge (HD).  

2.  The applicant states he was discharged as a result of positive urinalyses for marijuana at the age of 18.  He regrets his immature behavior at the time and requests his GD be upgraded to an HD based on his excellent post service conduct.  

3.  The applicant provides documents in support of his application through counsel (American Legion).  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel (American Legion) requests the applicant’s discharge be upgraded from a GD to an HD.  

2.  Counsel states the applicant regrets his youthful indiscretion and asks the Board to grant his petition to upgrade his discharge based on his post service conduct and accomplishments.    

3.  Counsel provides a statement and 7 attachments identified in the statement in support of the 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 record shows he enlisted in the Regular Army and entered active duty on 28 January 1981.  He was trained in and awarded military occupational specialty (MOS) 16S (Man Portable Air Defense System Crewman) and specialist four (SP4)/E-4 is the highest rank he attained while serving on active duty.  

3.  The applicant’s record shows he earned the Army Service Ribbon, Overseas Service Ribbon, and marksmanship qualification badges for the rifle and grenade during his active duty tenure.  His record documents no acts of valor or significant achievement.

4.  The applicant’s record shows he tested positive for THC (marijuana) on two separate occasions in February and August of 1983.  

5.  On 21 October 1983, the unit commander notified the applicant he was recommending him for discharge by reason of misconduct, commission of a serious offense, under the provisions of Army Regulation 635-200, chapter 14, based on his second positive urinalysis for use of marijuana.  

6.  On 21 October 1983, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and of the rights available to him.  Counsel further informed the applicant he was not being considered for an under other than honorable conditions (UOTHC) discharge and as a result he was not eligible to have his case considered by a board of officers.  The applicant acknowledged he could expect to encounter substantial prejudice in civilian life as a result of receiving a GD, and that he could be ineligible for many or all benefits as a veteran under both State and Federal laws.  



7.  On 4 November 1983, the separation authority approved the applicant’s request and directed that he be issued a GD.  On 14 November 1983, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed 2 years, 9 months, and 17 days of active military service.  

8.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.  

9.  Through counsel, the applicant provides several documents showing his post service accomplishments and the accomplishments of his children.  

10.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and being absent without leave.  

11.  Paragraph 14-3 of the same regulation contains guidance on characterization of service for members separated under chapter 14.  It states, in pertinent part, that a UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is properly delegated.  

12.  Paragraph 14-12c of the enlisted separations regulation provides for the separation of members for misconduct based on the commission of a serious offense which includes the abuse of illegal drugs.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention his discharge should be upgraded to an HD because it was based on immature actions that occurred when he was 18 years old and based on his excellent post service conduct has been carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.  



2.  The evidence of record confirms the applicant was discharged for misconduct, commission of a serious offense based on his use of illegal drugs on at least two separate occasions.  Although the applicant was young, he clearly was mature enough to serve satisfactorily as evidenced by his almost 3 years of service and his attainment of the rank of SP4/E-4.  As a result, it is clear the applicant was sufficiently mature to serve without using illegal drugs had he chose to do so.  

3.  By regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  Clearly, the honorable nature of the applicant’s overall record of service was the basis for him receiving a GD instead of a UOTHC discharge.  Although his excellent post service accomplishments are noteworthy, his multiple uses of illegal drugs clearly diminished his overall record of service below that meriting a fully honorable discharge.  Therefore, it would not be appropriate to upgrade his discharge based on his post-service conduct alone.  

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)                                         AR20100010973



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ABCMR Record of Proceedings (cont)                                         AR20100010973



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