IN THE CASE OF:
BOARD DATE: 7 December 2010
DOCKET NUMBER: AR20100012693
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 correction of the reason for his general discharge, under honorable conditions.
2. The applicant states he never used drugs and does not use them now. He contends that he had always "maxed" his physical training and had more responsibility than any other crew chief in the company. He had a major personality conflict with his platoon sergeant, who had control of his urinalysis sample.
3. The applicant provides no additional documentation.
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 applicants 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 applicants 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:
a. he enlisted in the Regular Army on 16 August 1983;
b. he was assigned to Fort Hood, Texas, as a helicopter repairman on
17 January 1984; and
c. he was advanced to private first class on 1 July 1984.
3. The available records show that the applicant underwent urinalysis screening on 12 December 1984 and on 18 July 1985. The chain of custody record identifies the individuals who handled the applicant's urine sample. The individual identified by the applicant as his platoon sergeant was not listed as ever having control of the sample.
4. On 16 January 1985 and 29 August 1985, the applicant's urine samples tested positive for use of marijuana.
5. On 23 September 1985, the applicant's company commander notified him that he was intending to take action to effect his discharge for misconduct. This action was based on a positive urinalysis received on 12 December 1984 and again on 18 July 1985.
6. The applicant consulted with counsel concerning his rights. He elected not to waive his rights to counsel and did not make a statement in his own behalf. He requested copies of documents that supported the proposed separation.
7. On 4 October 1985, the applicants commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct due to drug abuse based on positive urinalysis.
8. On 8 October 1985, the applicant accepted nonjudicial punishment for wrongful use of marijuana.
9. On 8 October 1985, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.
10. Accordingly, on 17 October 1985, the applicant was discharged under honorable conditions. He had completed 2 years, 2 months, and 2 days of creditable active duty service. The narrative reason for separation is misconduct due to drug abuse.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include the commission of a serious offense that could result in a punitive discharge. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.
12. Under the Uniform Code of Military Justice, the maximum punishment allowed for use of marijuana is a punitive discharge and confinement for 2 years.
13. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of or a change to his reason for his discharge within its 15-year statute of limitations.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that the reason for his discharge should be changed because he did not use drugs. He further contends that his platoon sergeant had control of his urinalysis test and implies he may have tampered with it.
2. The available evidence clearly shows that the applicant tested positive for marijuana use. Furthermore, the chain of custody does not support his implied contention that his platoon sergeant tampered with his urine samples.
3. The applicant has not provided any evidence or convincing argument sufficient to overcome the evidence of record. Accordingly, the reason for his separation appears to be correct concerning all of the facts of the case.
4. In view of the foregoing, the applicant's request should be denied.
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) AR20100012693
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ABCMR Record of Proceedings (cont) AR20100012693
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