IN THE CASE OF:	  

		BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100012555 


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 general discharge to an honorable discharge.

2.  The applicant states, in effect, it has been more than 3 years since he was discharged and he requests an upgrade of his discharge based on a review of his records. 

3.  The applicant provides no additional documentary evidence in support of his request.

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 (RA) for a period of 3 years on 
27 September 1978.  Upon completion of training he was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  The applicant reenlisted on several occasions to continue to serve on active duty in the RA, with a final reenlistment for a period of 4 years on 24 May 1990.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

   a.  item 5 (Oversea Service) he served in Africa-Middle East-Asia (Sinai) from 8 February through 7 August 1984; and U.S. Army Europe (Germany) from 
17 July 1985 through 2 March 1989, and from 10 September 1990 through          9 September 1992;

   b.  item 9 (Awards, Decorations and Campaigns) the Parachutist Badge, Multinational Force and Observers Medal, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Rifle (M-16) Bar, Noncommissioned Officer Professional Development Ribbon, Army Good Conduct Medal
(2nd Award), Army Commendation Medal, Army Service Ribbon, and Humanitarian Service Medal; and

   c.  item 18 (Appointments and Reductions) he was promoted to sergeant
[E-5] on 1 June 1983 and reduced to specialist [E-4] on 25 March 1991.

5.  On 25 March 1991, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongfully using marijuana between 19 January and 19 February 1991.  His punishment consisted of reduction to pay grade E-4, a forfeiture of $583.00 pay for 2 months, 45 days of restriction, and 45 days of extra duty.

6.  On 3 June 1991, the applicant's commander notified the applicant that he was initiating action to discharge him under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12c, based on commission of a serious offense.  The reason for his proposed action was the applicant tested positive for the use of marijuana during a random unit urinalysis test.  The applicant was advised of his rights and of the separation procedures involved.





7.  On 3 June 1991, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and of the effect of a waiver of his rights.  The applicant:

   a.  acknowledged he understood that military legal counsel for consultation was available to assist him.

   b.  elected not to submit statements in his own behalf.
   
	c.  requested representation by military counsel, consideration of his case by a board of officers, and personal appearance before a board of officers.

   d.  was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He was also advised that as a result of the issuance of a discharge under other than honorable conditions he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.

   e.  acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable he could make application to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge; however, an act of consideration by either board did not imply that his discharge would be upgraded.

   f.  placed his signature on the document along with his counsel.

8.  On 7 June 1991, the immediate and intermediate commanders recommended approval of the applicant's separation action with a general discharge under honorable conditions.

9.  On 24 July 1991, after having been advised by his consulting counsel, the applicant voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service or description of separation no less favorable than honorable.

10.  The separation authority denied the applicant's request for an honorable discharge in return for a waiver of his right to an administrative separation board hearing.



11.  On 29 July 1991, the applicant, along with his counsel, appeared before an administrative board.  The board proceedings, in pertinent part, show:

   a.  the Recorder presented a photocopy of a DA Form 5180-R (Urinalysis Custody and Report Record), dated 5 March 1991, with four photocopies of photographs of a urine specimen bottle.  The DA Form 5180-R shows that the laboratory results for the urine specimen identified with the applicant's social security number tested positive for THC (Tetrahydrocannabinol).

   b.  the applicant concluded, "I know that in light of recent events I have little future left in the Army, but I ask this board today to give me an honorable discharge so that I can move on and adjust to civilian life.  I think that I should be given an honorable discharge because a lot of effort is put into 12 years.  You might do something that everyone says the Army doesn't tolerate, but 12 years is a long time.  I just want to clean the slate and move on.  I would like the board to consider my 201 file and all the evidence that you have here before they make a decision."

   c.  the members of the board found the applicant, a noncommissioned officer, did use marijuana at some unknown location between 19 January and
19 February 1991.  The board recommended that the applicant be separated from the service and his service be characterized as under honorable conditions.

12.  On 16 August 1991, the separation authority approved the findings and recommendations of the administrative separation board and directed that the applicant be discharged from the U.S. Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, based on commission of a serious offense, and issued a General Discharge Certificate.

13.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 9 September 1991 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct based on commission of a serious offense with service characterized as under honorable conditions (general).  At the time he had completed 12 years, 11 months, and 13 days of net active service.

14.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.




15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

	a.  chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  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.  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.
   
   b.  chapter 3, 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 contends his general discharge under honorable conditions should be upgraded to fully honorable based on his overall record of service.

2.  The applicant's contention was carefully considered.  The evidence of records shows:

   a.  the applicant attained the rank of sergeant (E-5), his highest award was the Army Commendation Medal, and he served on active duty for approximately 12 years prior to the incident in question.

   b.  the applicant tested positive for THC.  

   c.  the applicant's request for a conditional waiver of consideration of his case by an administrative separation board contingent upon his receiving a characterization of service or description of separation no less favorable than honorable was considered and denied by the separation authority.
   
   d.  the applicant appeared before an administrative separation board, had the opportunity to present his defense, and the board recommended that the applicant be separated from the service with a general discharge.

3.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct based on commission of a serious offense was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the reasons therefore were appropriate and equitable.

4.  In view of all of the foregoing, it is concluded that the applicant's overall record and quality service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable 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)                                         AR20100012555



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ABCMR Record of Proceedings (cont)                                         AR20100012555



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