BOARD DATE:	 18 February 2011

		DOCKET NUMBER:  AR20100021013 


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 honorable.

2.  He states he had a clean urinalysis.  The military police officer misjudged him; he was swallowing food.  He needs his discharge upgraded for employment purposes.

3.  He provides a completed DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).

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 he enlisted in the Regular Army, in pay grade E-3, on 1 March 1988, for 4 years.  He completed training and he was awarded military occupational specialty 11B (Infantryman).  

3.  A U.S. Army Criminal Investigation Command (USACIDC, also known as CID) Report of Investigation, dated 18 July 1989, disclosed that he wrongfully possessed and used approximately 2 grams of hashish and resisted apprehension on 22 June 1989.   

4.  On 14 December 1989, he was counseled pertaining to his commander's intention to chapter him out of the Army if he did not show the potential to improve.

5.  A Report of Mental Status Evaluation, dated 21 December 1989, shows the applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented, his mood or affect was unremarkable, his thinking process clear, his thought content was normal and his memory was good.  The evaluating psychiatrist, an Army Medical Corps officer, found the applicant to be mentally responsible and considered him to have the mental capacity to understand and participate in separation proceedings.  

6.  In January 1990, the company commander notified the applicant of the proposed action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations) for commission of a serious offense, with a general discharge.  

7.  On 3 January 1990, after consulting with counsel, he acknowledged receipt of the proposed separation action for commission of a serious offense under the provisions of Army Regulation 635-200, chapter 14-12c.  He acknowledged he understood the basis for the contemplated separation action and its effect and the rights available to him.  He waived his rights and elected to submit a statement in his own behalf.

8.  On 8 January 1990, the applicant's company commander recommended the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense, with a general discharge. The company commander stated the reasons for the recommendation were the applicant's possession of marijuana and resisting apprehension by authorities.  The applicant's behavior was prejudicial to the good order and discipline of the Army.  His discharge would be in the best interest of the Army.

9.  In his statement, dated 10 January 1990, the applicant stated he believed he was being treated unjustly.  He was being chaptered out of the military and he was not given due process.  His statement indicated that he believed he was attacked and he should not be charged with resisting arrest.  He stated the cops wanted him to give them some jewelry and he believed the charges were typed in after he wouldn't pay them.  He indicated a drug charge would ruin his life when the same thing could be accomplished with a chapter 5 which was what he believed he was really guilty of.  

10.  In January 1990, the applicant's battalion commander recommended the applicant be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general discharge.

11.  In January 1990, the appropriate separation authority approved the discharge action and directed the issuance of a General Discharge Certificate.  

12.  He was discharged in pay grade E-3 on 25 January 1990, under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct-abuse of illegal drugs.  He was credited with completing 1 year, 10 months, and 25 days of net active service.

13.  On 10 October 1991, the Army Discharge Review Board denied his request for an upgrade of his discharge.

14.  Army Regulation 635-200, then in effect, set forth the basic policy for the separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating enlisted members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  

15.  Paragraph 14-12c(2) of the regulation provided for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs.  It provided that individuals identified as first time drug abusers, grades E-5 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could 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 was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

16.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered; however, they do not support a change to his general discharge.  The evidence of record shows while serving in the pay grade of E-3, a CID report disclosed he had wrongfully possessed and used hashish and resisted apprehension.  

2.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge and he has submitted neither probative evidence nor a convincing argument that shows he now warrants a fully honorable discharge.  He was properly separated for misconduct, commission of a serious offense.

3.  In the absence of evidence to the contrary it appears his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

4.  In view of the circumstances in this case, he was appropriately discharged and he has not shown otherwise.  

5.  His desire to have his general discharge upgraded so that he can qualify for employment is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for employment.

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)                                         AR20100021013



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ABCMR Record of Proceedings (cont)                                         AR20100021013



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