IN THE CASE OF:	  

		BOARD DATE:	    7 October 2010

		DOCKET NUMBER:  AR20100014375 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states he believes he should have been offered counseling since it was evident that he was having problems.  He further states he has not used drugs since 1986 when his family became involved in his well being.

3.  The applicant did not provide any 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 in pay grade E-4 on 19 July 1983, having serving 2 years, 11 months, and 14 days of prior active service in the U.S. Marine CorpS and 1 year of prior inactive service.  He completed basic and advanced individual training and he was awarded military occupational specialty 94B (Food Service Specialist).

3.  On 14 September 1985, while assigned to a unit in Germany, the applicant was apprehended by military authorities after purchasing 3.6 grams of marijuana.

4.  On 7 October 1985, court-martial charges were preferred against the applicant for the following offenses:

* on or about 14 September 1985, wrongfully possessing 3.6 grams of marijuana
* from about 3 June 1985 to about 3 July 1985, wrongfully using marijuana

5.  On 8 October 1985, the applicant was convicted by a summary court-martial of the two above offenses.  The "Report of Result of Trial" indicated he was sentenced to:

* reduction to the rank/grade private (PV1)/E-1
* forfeiture of $608.00 pay per month for one month
* 30 days of restriction

6.  On 9 October 1985, the unit commander notified the applicant he was initiating separation action on him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12d, for drug abuse.  The unit commander also cited the applicant’s urinalysis report, dated July 1985 (the report is missing from his file); a CID Report, dated 
16 September 1985 (the report is missing from his file), and the summary court-martial "Report of Result of Trial," dated 8 October 1985, as the reasons for his recommendation.

7.  On 10 October 1985, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects and of the rights available to him.  He waived his right to an administrative separation board, even in the event that an under other than honorable conditions discharge is recommended.  The applicant also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life if less than an honorable discharge was issued to him.  He further understood that as the result of the issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws. The applicant elected not to submit a statement in his own behalf.
8.  On 12 November 1985, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 6 December 1985, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he was separated under the provisions of Army Regulation 635-200, paragraph 14-12d, by reason of misconduct - abuse of illegal drugs.  He completed a total of 2 years, 4 months, and 18 day of active service during this period of service.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides 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.

11.  Army Regulation 635-200, paragraph 3-7b, provides that 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's contention that his discharge should be upgraded to a general discharge because he has not used drugs since 1986 and that he did not receive counseling were carefully considered and found to be insufficient in merit.

2.  The applicant’s contention that he has not used drugs since 1986 is admirable; however, it is not a basis for an upgrade of his discharge.  There is also no evidence and the applicant did not provide any evidence which shows that he tried to inform his chain of command or other available agencies of his problems.

3.  The evidence of record shows the applicant was tried and convicted by a summary court-martial for wrongfully possessing and using marijuana.  The offense was a serious act of misconduct, which warranted a discharge under other than honorable conditions.

4.  As a result, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance of duty expected of Army personnel.

5.  The applicant's misconduct clearly diminished the overall quality of his service below that meriting a general discharge.

6.  In view of the above, there is no basis for granting his requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.



      _______________________
               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)                                         AR20100014375



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ABCMR Record of Proceedings (cont)                                         AR20100014375



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