IN THE CASE OF:	  

		BOARD DATE:	  7 January 2011

		DOCKET NUMBER:  AR20100014392 


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 upgrade of his general discharge (GD) to an honorable discharge (HD).

2.  The applicant states:

	a.  he does not believe the members on the board followed Army regulations intended to protect common Soldiers from officers like them, 
	
	b.  his defense counsel objected to the board's use of records which Army regulations do not allow, and 
	
	c.  he was unjustly discharged before he could retire.

3.  The applicant provides a memorandum his defense counsel sent to the separation authority.

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 was inducted into the Army of the United States on 14 September 1967 and honorably released from active duty on 12 September 1969.  After a break in active duty service, he enlisted in the Regular Army on 28 March 1974 where he served until he was discharged.  He served in military occupational specialty 11B (Infantryman) throughout his Army service.  

3.  The record shows the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the following offenses:

* 24 January 1975 for wrongfully and unlawfully possessing a controlled substance (marijuana)
* 1 November 1977 for dereliction in the performance of his duties in that he negligently failed to remain awake and alert as Charge of Quarters
* 1 August 1980 for wrongful use of provoking words

4.  In October 1981, he appealed NJP under Article 15, UCMJ, for operating a vehicle while drunk.  His appeal was denied.  His punishment was reduction to sergeant (SGT)/E-5 (suspended), forfeiture of $400 per month for 2 months, and extra duty in a supervisory position for 30 days.

5.  On 30 April 1982, he appealed NJP under Article 15, UCMJ, for operating a motor vehicle without a valid privately owned vehicle operator's license.  His appeal was denied.  His punishment was reduction to SGT/E-5 and extra duty in a supervisory position for 25 days.

6.  A memorandum from Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart, dated 18 January 1984, informed the applicant that because he was promoted to staff sergeant (SSG)/E-6 with a date of rank preceding a Department of the Army (DA)-imposed bar to reenlistment, the bar should not have been presented to him and was removed from his DA Form 201 (Military Personnel Records Jacket (MPRJ)).  This memorandum was filed in his MPRJ with a memorandum, dated 23 January 1984, from the Alternate President, Reenlistment Appeals Board, U.S. Army Military Personnel Center, confirming the DA-imposed bar to reenlistment was administratively removed.  

7.  The applicant reenlisted on 27 September 1984.  

8.  A General Counseling Form shows, on 1 November 1984, the applicant was counseled by his commander for bypassing his chain of command to obtain time off for reenlistment.  His commander stated:

Prior to [an exercise], you desired to reenlist...Your performance during [the exercise] was to be the criterion as to whether your duty performance merited reenlistment.  You proved you could perform well in addition to supervising troops for the accomplishment of various tasks.  You also demonstrated an overall trend for improvement.  You were thus allowed to reenlist rather than having a "bar" imposed on you.  However, on 30 October 1984, you skipped your chain of command in order to obtain your time off for reenlistment.  The critical aspect of this action is not your dereliction [and] negligence to inform your chain of command, but currently, you are acting in the capacity of [platoon sergeant], your platoon is undergoing [Expert Infantryman Badge (EIB)] training (and they have flagrantly demonstrated their need for close supervision), your EIB qualified [noncommissioned officers] have been attached to [brigade] which further increases the need for supervision, on 1 [and] 2 November the company will be conducting its own EIB training with limited assets which further increases the need for close NCO supervision to insure quality training, you yourself do not yet possess the EIB, and you are not setting an example commensurate with my desire for all eligible personnel receiving the EIB as well as the necessary impact a motivated [noncommissioned officer] could have on his subordinates for hard work towards winning this coveted award.

His commander further stated he was "totally disappointed" in his action, that he would initiate a bar to reenlistment, and that further negligence would result in discriminatory documentation regarding the incident, statements from key personnel documenting his past negligence, relief for cause with accompanying Enlisted Evaluation Report, a request that he appear before a reduction board, and initiation of action to terminate his service.  His commander indicated if his negligence was severe enough, he would request field-grade NJP under Article 15, UCMJ.

9.  The applicant acknowledged having been counseled, indicated he understood the reason for the counseling session, and indicated he did not concur.  He stated, "Due to some preconceived prejudism [sic] on the commander's part, he has not accurately reflected my job performance and I do not feel he is capable of making an unbiased report about me."

10.  On 5 November 1984, the applicant acknowledged he had read and understood a Suggested Counseling Statement Guide.  The document describes the types of discharges that may result from an elimination action and their effects and includes the statement "You are advised that continued behavior of a similar nature may warrant elimination action be taken against you."  

11.  On 16 January 1985, the applicant acknowledged receipt of a memorandum from the Commandant, U.S. Army Drill Sergeants School, Fort Jackson, SC, informing him he was administratively released from the Drill Sergeant Orientation Course and directed to return to his command because a urine sample he provided had tested positive for marijuana.  

12.  On 18 January 1985, the Commandant, U.S. Army Drill Sergeants School, forwarded the school policy for urinalysis testing and the applicant's test results to the applicant's command sergeant major (CSM).  The Commandant informed the CSM the machine used at Fort Jackson was 99 percent accurate.

13.  On 14 February 1985, the Commandant, U.S. Army Drill Sergeants School, informed the applicant's battalion commander the initial urinalysis test results were confirmed.  

14.  On 21 March 1985, the applicant's commander submitted a DA Form 4126-R (Bar to Reenlistment Certificate) recommending he be barred from reenlistment.  His commander listed four instances of NJP and the positive urine sample on the form and stated, "It is my intent to deny this Soldier the opportunity to attain retirement eligibility."  The chain of command recommended approval of the bar.  On 3 June 1985, the U.S. Army Enlistment Eligibility Activity approved the bar to reenlistment.

15.  A second General Counseling Form shows, on 25 March 1985, the applicant was counseled by his commander regarding the positive urine sample he provided while he was enrolled in the Drill Sergeant Orientation Course.  His commander informed him he was recommending a bar to reenlistment and discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 or 14.

16.  On 28 March 1985, the applicant provided the following statement:

In January 1985 I was enrolled in the Drill Sergeants School and came up positive on a urinalysis that was conducted there.

The commandant counseled me at that time and I explained that I did not know how I had been positive, but was sent back to my unit.

When I reported back to my battalion I also explained to the battalion [command sergeant major] and my [first sergeant].
Since that time I have since taken another urinalysis which has not come back yet, but I am sure it will come back negative and support me.

However, I think my career has been damaged enough by the first urinalysis that justice to the U.S. Army and myself [sic] would best be served by allowing me to terminate my commitment to the service with an honorable discharge.

17.  The record is void of documentation showing the applicant took a second urinalysis.  

18.  On 15 April 1985, the applicant's commander informed him he was initiating action to discharge him from the U.S. Army for misconduct-abuse of illegal drugs and unsatisfactory duty performance.  He also informed the applicant he intended to recommend characterization of his service as under other than honorable [conditions].  The applicant confirmed receipt of the letter of notification with his signature.

19.  On 18 April 1985, the applicant consulted with legal counsel, and he was advised of the basis for the contemplated separation for misconduct and its effect, the rights available to him, the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that if he received a discharge under conditions other than honorable he could expect to encounter substantial prejudice in civilian life and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He requested consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  

20.  On 25 July 1985, a board of officers convened to consider whether the applicant should be discharged from active duty.  A Summary of Proceedings shows the applicant's counsel objected to consideration of his 201 File (Military Personnel Records Jacket (MPRJ)) on the grounds that Army Regulation 635-200, paragraph 3-8 stated characterization of service should be determined solely by the current term of service, but the applicant's MPRJ includes references to his entire military career.  The board president stated the MPRJ would not be seen.  

21.  Later in the proceedings, the president of the board stated he had sought legal advice and he wished to review the MPRJ and make a determination as to whether or not there was information which might be brought to the board.  After reviewing the MPRJ, the president determined there were sufficient regulatory grounds to consider information in the MPRJ.  The MPRJ was not to be used in determining characterization of service, but to determine whether or not elimination should occur.  

22.  The Summary of Proceedings shows the applicant was examined by the board and answered questions on each of his instances of NJP.  

23.  The Summary of Proceedings is silent on whether or not the board viewed documentation in the applicant's record pertaining to the removal of a bar to reenlistment in 1984.

24.  After considering the evidence before it, the board recommended the applicant for elimination for misconduct-abuse of illegal drugs under the provisions of Army Regulation 635-200, chapter 14, and that he be issued a General Discharge Certificate.  The board found the applicant was undesirable for further retention in the Service and that his rehabilitation was not deemed possible.

25.  On 30 September 1985, the separation authority approved the board's recommendations.  On 22 October 1985, the applicant was discharged accordingly after completing 13 years, 6 months, and 23 days of total active military service.  

26.  The record is void of documentation showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

27.  The applicant provides a memorandum, dated 8 August 1985, from his defense counsel to the separation authority.  His defense counsel requested the separation authority set aside the findings and recommendations of the board and refer the case to a new board for a rehearing.  

28.  In his memorandum, the defense counsel stated the respondent (the applicant) made two objections during the board proceedings.

	a.  The first objection was to consideration by the board of NJP received by the applicant during a prior period of service.  Objection to the evidence was based on Army Regulation 635-200, paragraphs 1-17 and 3-8.

	b.  The second objection was to consideration of his MPRJ as an entity.  Defense counsel argued, in effect, that relevant documents from the MPRJ should have been submitted as individual exhibits giving the applicant an opportunity to object to particular documents and giving him notice of what was being considered.  Over this objection, the board considered the MPRJ as a whole.

29.  Defense counsel further stated, in effect, the board's questioning of the applicant regarding NJP from a prior period of service and consideration of the MPRJ as a whole led to consideration of negative information, including a letter referencing a removed bar to reenlistment, which had "remote relevance."  As a result, the applicant's opportunity to receive fair consideration for retention or separation was "substantially and effectively nullified and the board error cannot be deemed harmless."

30.  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.

31.  Paragraph 1-17 of the version of Army Regulation 635-200 in effect at the time provided general guidance to be considered when initiating separation action.  It states, in pertinent part, when deciding retention or separation in a case, consider adverse matter from a prior enlistment or period of military service only when such records would have a direct and strong probative value in determining whether separation is appropriate.  This would include records of NJP and convictions by court-martial.  Such records ordinarily will be used only in those cases involving conduct repeated over an extended time.  Isolated incidents and events that are remote in time normally have little probative value in determining whether administrative separation should be effected.

32.  Paragraph 3-8 addressed limitations on characterizations of service.  It states, in pertinent part, characterization will be determined solely by the member's military record which includes the member's behavior and performance of duty during the current enlistment or period of service to which the separation pertains.  Prior service activities including, but not limited to, records of convictions by courts-martial, records of NJP, records of absence without leave, or commission of other offenses for which punishment was not imposed were not to be considered.  

33.  Paragraph 3-8 further states that to the extent such matters cited above are considered on the issue of retention or separation, the record of proceedings will reflect express direction that such information will not be considered on the issue of characterization.

34.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

35.  Army Regulation 15-185 (Army Board for Correction of Military Records) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for upgrade of his GD to an HD.

2.  While attending the Drill Sergeant Orientation Course, the applicant provided a urine sample that tested positive for marijuana.  As a result he was dismissed from the course, returned to his command, and processed for separation as required by regulation.  

3.  The evidence of record shows the board had sufficient cause to review the applicant's MPRJ in its entirety.  The record shows the applicant received NJP in 1975, 1977, 1980, 1981, and 1982.  This is a consistent pattern of punishable conduct with probative value for a board impaneled to make a recommendation for retention or elimination for misconduct-abuse of illegal drugs.  As required by regulation, the Summary of Proceedings states this information was not to be used to determine characterization of service.  In fact, the board recommended a characterization of service more favorable than what was normally considered appropriate and the recommendation was approved.   

4.  Based on his record of indiscipline, which includes testing positive for use of marijuana while attending the Drill Sergeant Orientation Course, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant 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)                                         AR20100014392





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ABCMR Record of Proceedings (cont)                                         AR20100014392



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