IN THE CASE OF:	  

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100019073 


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 from the Army National Guard (ARNG) be upgraded to an honorable discharge.

2.  The applicant states him and his wife were going through some rough times and he informed his commander of his intent to retire.  After he retired he tested positive for marijuana and was recommended for a general discharge by a administrative discharge review board which convened after he received his 20 year letter and retired.  He believes his exemplary service over a 20 year career should warrant upgrading his discharge to honorable.

3.  The applicant does not provide additional documents.

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 military records show that he enlisted in the U.S. Army Reserve on 10 August 1975 and was promoted to pay grade E-6.

3.  On 16 October 1989, he enlisted in the ARNG.

4.  On 28 February 1993, he tested positive for cocaine.  His commander and battalion commander recommended his retention, saying the drug use was an isolated incident.

5.  On 7 January 1995, the applicant tested positive for THC (marijuana).

6.  His commander notified him of his intent to recommend his discharge and of his rights in conjunction with that recommendation.  The applicant requested a board of officers consider his case.

7.  On 10 August 1995, the applicant was issued a 20-year letter certifying his eligibility for retired pay at age 60.

8.  In a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), it was found that the applicant tested positive for THC for the second time on 7 January 1995 and never entered in a rehabilitation program.  He hired a civilian attorney to represent him and civilian counsel requested continuance until 5 October 1995.  On 5 October 1995, neither the applicant or counsel appeared at the hearing and phone calls to both were never returned.  The board of officers recommended the applicant be given a general discharge with a bar to reenlistment.

9.  The findings and recommendation of the board of officers were approved by the Adjutant General.

10.  Accordingly, on 15 October 1995, the applicant was given a general discharge and issued an NGB Form 22 (Report of Separation and Record of Service).  Item 23 of this form, Authority and Reason, has "PARA 8-27v NGR 600-200  DISCHARGE FOR ASSIGNMENT TO RETIRED RESERVE."

11.  Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  Chapter 7 of the regulation in effect at the time established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Paragraph 7-11c.1 stated abuse of illegal drugs was serious misconduct and discharge action normally would be based on commission of a serious offense.  First time drug offenders in the rank of sergeant and above would be processed for discharge on discovery of a drug offense.  Soldiers in the grades of E-1 through E-4 could be processed fro discharge as appropriate.  Second time drug offenders in any enlisted grade of rank must have been processed for discharge after a second offense.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such is merited by the Soldier’s overall record. 

11.  Army Regulation 135-178 provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  In pertinent part, it states that the honorable characterization of service is appropriate when the quality of the Soldier’s service generally meets the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  A general discharge is warranted when significant negative aspects of the Soldier's conduct or performance outweighs positive aspects of the Soldier's military record.  

12.  On 22 April 1997, the Army Discharge Review Board denied the applicant's request for a discharge upgrade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did, in fact, have a long and distinguished career in the USAR and ARNG.  That fact resulted in his retention when he tested positive for cocaine in 1993 and, more than likely, resulted in him receiving a general discharge instead of an under other than honorable discharge when he tested positive for THC in 1995.

2.  He tested positive for cocaine on 28 February 1993 and for THC on 7 January 1995, well prior to him being issued a 20-year letter on 10 August 1995.  As such, the applicant committed his misconduct and action was initiated to separate him prior to him earning 20 qualifying years of service.  There is no error or injustice in the applicant being separated after he achieved 20 qualifying years of service. 

3.  In view of the foregoing, there is no basis for granting the applicant’s request.


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)                                         AR20100019073





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ABCMR Record of Proceedings (cont)                                         AR20100019073



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