IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100014052 


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 be upgraded to an honorable discharge.  

2.  He states he accepted the discharge because he was told it would automatically be upgraded to honorable after 6 months.  He adds he was taking drugs to deal with the back pain from an injury he sustained on active duty.  He explains he was in tremendous pain and was only given Tylenol.  He adds that if he had received the therapy and pain treatment medication he needed while in service he would not have resorted to something illegal to deal with the pain.  Additionally, he states he served 7 years of solid dedicated service for his country. 

3.  He provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 on 1 February 1979.  

3.  On 26 September 1985, nonjudicial punishment was imposed against him for wrongful use of marijuana.  His punishment consisted of reduction from E-5 to the grade of E-4, a forfeiture of $350.00 pay for 2 months, 15 days of restriction, and 15 days of extra duty.

4.  On 25 November 1985, he underwent a mental status evaluation and he was determined to be mentally cleared for separation.

5.  On an unknown date, the unit commander notified the applicant of his intent to recommend that he be separated from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c.  The commander indicated that his proposed separation action was based on the applicant's positive urinalysis for THC (marijuana).  He also indicated that in accordance with Army Regulation 635-200, service members in the grade of E5 and above, first time drug offenders, must be processed for elimination.   

6.  On 22 January 1986, the unit commander recommended that the applicant be eliminated from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c, abuse of illegal drugs.

7.  On 24 January 1986, he consulted with military counsel.  After being advised of the basis for the contemplated separation action, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, to a personal appearance before a board of officers, and to counsel.  He also elected not to submit statements on his behalf.  He also acknowledged he understood that he may encounter substantial prejudice in civilian life if a general discharge was issued to him.  He further acknowledged that if he received a discharge certificate/character of service which was less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge.  However, he acknowledged he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  He also acknowledged he understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

8.  On 20 February 1986, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14.  He directed that the applicant be furnished a General Discharge Certificate.

9.  The applicant's DD Form 214 shows he was discharged on 27 March 1986 under the provisions of Army Regulation 635-200, paragraph 14-12c, misconduct, abuse of illegal drugs.  He was credited with completing 7 years, 1 month, and 27 days of active service.  

10.  There is no indication he applied to the ADRB for an upgrade of his discharge within the 15-year statute of limitations of that board.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14-12 establishes policy and prescribes procedures for separating members for acts or patterns of misconduct.  Paragraph 14-12c states that specific categories of commission of a serious military or civil offense include abuse of illegal drugs.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Additionally, paragraph 14-3 states that an under other than honorable discharge certificate is normally appropriate for a member who is discharged for acts and patterns of misconduct.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's argument, in effect, that his drug abuse was due to his back injury, the pain that he experienced, and the lack of sufficient physical therapy and pain medication was considered.  However, there is no evidence available and he has not provided any to show he suffered from severe back pain and he sought treatment through medical channels to alleviate his pain.  Therefore, this contention is not supported by evidence of record.

2.  Evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.
3.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  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)                                         AR20100014052



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ABCMR Record of Proceedings (cont)                                         AR20100014052



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