IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100012200 


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 U.S. Army Reserve (USAR) discharge from under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he reported to his unit for the purpose of outprocessing one month after his commitment had expired.  He underwent a urinalysis and tested positive for marijuana.  Although not proud of his conduct, he believes he served proudly and honorably during his 4 year commitment.  He has regretted his actions for over 15 years and wants to clear his tarnished reputation.

3.  The applicant did not provide any additional documentary evidence.

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 records show he enlisted in the USAR for a period of 8 years on 23 May 1991 and was assigned to the 303rd Military Police Company, Jackson, MI.

3.  On 21 January 1992, he entered active duty for training (ADT).  He completed basic combat and advanced individual training and he was awarded military occupational specialty 95B (Military Police).  He was honorably released from ADT to the control of his USAR unit on 27 May 1992.

4.  On 12 June 1994, he participated in a unit urinalysis and his urine sample tested positive for marijuana.  

5.  On 26 August 1994, by memorandum sent via certified mail, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 7 of Army Regulation 135-178 (Separation of Enlisted Personnel) for misconduct – commission of a serious offense (abuse of illegal drugs).  His commander further notified him to acknowledge receipt within 30 days and that he, the immediate commander had suspended the action for a period of 45 days to give him an opportunity to consult with counsel, present his case before an administrative board, obtain copies, submit statements on his own behalf, or waive his rights.  

6.  He accepted delivery of the certified letter on 30 August 1994 but failed to respond within 45 days or exercise his rights.  The notification memorandum advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  It also notified him he could expect to encounter substantial prejudice in civilian life if a general under honorable conditions discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

7.  On 2 November 1994, his immediate commander initiated separation action against him in accordance with paragraph 7-11(c) of Army Regulation 135-178 for misconduct.  The immediate commander remarked that the applicant's conduct and performance were unsatisfactory and that the reason for the proposed action was the applicant's misconduct in the form of drug abuse.  He recommended a general discharge.

8.  On 10 November and 15 December 1994, his intermediate and senior commanders recommended approval of the discharge with the issuance of a general discharge.
9.  On 27 January 1995, the separation authority approved the applicant's discharge under the provisions of paragraph 7-11(c) of Army Regulation 135-178 by reason of misconduct – commission of a serious offense.  He directed the applicant's service be characterized as under other than honorable conditions and he be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged from the USAR on 27 January 1995.

10.  Orders 95-078-049, issued by Headquarters, USAR Command, Atlanta, GA, on 27 January 1995 show he was discharged under the provisions of paragraph 7-11(c) of Army Regulation 135-178 by reason of misconduct  with an under other than honorable conditions character of service.

11.  There is no indication he 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 135-178 provides for the separation of enlisted personnel of the Army Reserve and Army National Guard. Chapter 7 of the regulation, in effect at the time, establishes policy and prescribes 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. Paragraph 7-11(c.1), in pertinent part, states that abuse of illegal drugs is serious misconduct and discharge action normally will be based on commission of a serious offense.  First time drug offenders in the rank of sergeant and above, and all Soldiers with 3 or more years of total military service (Regular and Reserve) will be processed for discharge on discovery of a drug offense.  A discharge under other than honorable conditions is 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.   This regulation provides that:

	a.  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.

	b.  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 contention that his discharge should be upgraded because he would like to clear his tarnished reputation was carefully considered; however, there is insufficient evidence to support an upgrade of his discharge.

2.  The evidence of record shows he committed a serious offense by unlawfully abusing illegal drugs as evidenced by him testing positive for marijuana during a unit urinalysis.  Accordingly, his chain of command initiated separation action against him.  He was provided an opportunity to exercise his rights but failed to respond.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge.  Therefore, he is not entitled to relief.

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)                                         AR20100012200



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ABCMR Record of Proceedings (cont)                                         AR20100012200



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