IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100012337 


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 that his general discharge under honorable conditions be upgraded to an honorable discharge. 

2.  The applicant states he did not smoke marijuana and did not disobey a lawful order.  He states he told his commander he had filed a lawsuit against the 46th Chemical Company.  When the commander asked why he was suing he stated "I told them they know."  He states his roommate attacked him for nothing and he was sent to the hospital.  When he returned from the hospital a Soldier told him if he "…didn't smoke this maj" he would beat him again.  He states the Eighth Amendment was broken.

3.  The applicant states he was in a motor pool car wreck so he sent for his service medical records.  The records he received are not dated correctly.

4.  The applicant provides copies of:

* a Standard Form 558 (Emergency Care and Treatment), dated 5 April 1986
* two pages from his Chronological Record of Medical Care with entries dated 19 October and 23 October 1987


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 military personnel records show he enlisted in the Regular Army on 8 January 1986 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 76C (Equipment Records and Parts Specialist).  He was assigned to the 46th Chemical Company at Fort Hood, TX on 29 May 1986.

3.  On 27 April 1987, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to obey a lawful order.  He received a reduction to the grade of E-2 (suspended for 90 days) and 
7 days of correctional custody.  He appealed and on 27 April 1987 his appeal was denied.  On 28 April 1987, the suspended reduction was vacated due to further misconduct.

4.  On 4 August 1987, the applicant accepted NJP under Article 15, UCMJ, for wrongful use of marijuana, detected by biochemical testing of a urine sample submitted on 9 June 1987.  He did not appeal.

5.  On 27 August 1987, the applicant received a mental status evaluation.  According to the DA Form 3822-R (Report of Mental Status Evaluation) the examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings.

6.  On 5 October 1987, the applicant's commander notified him that action was being initiated to separate him under the provisions of paragraph 14-12c, Chapter 14 of Army Regulation 635-200 (Personnel Separations) based on his positive urinalysis result dated 9 June 1987.  The commander advised the applicant of his right to:

* consult with counsel
* obtain copies of documents that would be sent to the separation authority supporting the proposed separation action
* request a hearing before an administrative separation board if he had more than 6 years service
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge

7.  The commander advised the applicant that failure to respond within 7 duty days would constitute a waiver of his rights.

8.  In a Memorandum for the Record, dated 16 October 1987, the applicant's commander stated that on 14 October 1987 the applicant was escorted to his civilian counsel to review and sign the notification of initiation of administrative separation proceedings.  The civilian counsel refused to sign the notification and kept the form.  As of 16 October 1987 the civilian counsel had not signed the notification.

9.  The applicant's commander recommended that he be processed for separation due to drug abuse under the provisions of Chapter 14 of Army Regulation 635-200.  The commander stated the applicant had a positive urinalysis result on 9 June 1987.  The commander stated the applicant had blatantly disregarded all forms of rehabilitation, was disrespectful to his superiors, and was a total liability to the order of the unit.  He stated the applicant's drug use had a detrimental effect on the unit's readiness, morale, and ability to accomplish its mission.  He stated the applicant had been counseled repeatedly on his poor duty performance, absence from duty, and disrespect to his superiors.  The commander recommended he be issued a General Discharge Certificate.

10.  On 22 October 1987, the appropriate authority approved the recommendation for the applicant’s discharge under the provisions of paragraph 14-12d, Army Regulation 635-200 with the issuance of a General Discharge Certificate.  



11.  On 28 October 1987, the applicant was discharged under the provisions of Chapter 14 of Army Regulation 635-200 by reason of misconduct - drug abuse.  He had completed 1 year, 9 months, and 21 days of active service that was characterized as under honorable conditions.  

12.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 19 April 1989, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under honorable conditions.

13.  The Standard Form 558 submitted by the applicant shows he received treatment on 5 April 1986 for pain in his right elbow.

14.  The Chronological Record of Medical Care submitted by the applicant shows that on 19 October 1987, at Fort Hood, TX, he was treated for back pain.  A note dated 23 October 1987, at Fort Hood, TX, states the applicant requested a correction of a mistake that was made in recording the date of an accident.  The note states the applicant was advised to obtain a record of the accident from the civilian hospital.

15.  Chapter 14, paragraph 14-12c of Army Regulation 635-200, in effect at the time, dealt with separation for various types of misconduct, which included drug abuse, and provided 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.

16.  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.

17.  The Eighth Amendment of the U.S. Constitution states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge should be upgraded to an honorable discharge.  He contends the Eighth Amendment was broken in his case.  He contends the date of his accident as it is shown in his service medical record is incorrect.

2.  The applicant provided no evidence to show his discharge violated his Eighth Amendment rights.  His discharge was not a punishment but an administrative action based on his actions in the Army.  Therefore, the rights provided for under the Eighth Amendment were not violated in this case.

3.  The notes in the applicant's service medical records state that in order for him to get a correction to an incorrectly recorded date of an accident, he needed to obtain a hospital report from the civilian hospital.  There is no evidence the applicant ever provided this report and he did not provide it as evidence with his application.  Therefore, there is sufficient basis to grant relief for this issue.

4.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

5.  The positive urinalysis the applicant received clearly shows he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or significant achievement.  

6.  In view of the above, there is insufficient basis to upgrade the applicant's discharge.

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)                                         AR20100012371



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ABCMR Record of Proceedings (cont)                                         AR20100012337



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