IN THE CASE OF:	  

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100025361 


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, in effect, upgrade of his general discharge to an honorable discharge and correction of his rank/grade.

2.  The applicant states his discharge was improper because it was based on biased board members and inequitable because it was based on one isolated incident in 11 years of service with no other adverse actions. 

3.  The applicant provides:

* a DA Form 4856 (General Counseling Form), dated 7 December 1988
* a statement from a former military attorney, dated 26 May 1988
* a statement from a friend, dated 27 January 1988
* a statement from another friend, dated 25 January 1988
* a memorandum, subject:  Amendment of DISCOM Administrative Board Member, dated 9 May 1988

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.  Having had prior service in the Regular Army (RA) and the U.S. Army Reserve, the applicant enlisted in the RA on 30 August 1983 in the rank/grade of specialist four (SP4)/E-4.  He held military occupational specialty 43E (Parachute Rigger).  He was assigned to Fort Bragg, NC.

3.  His record shows he had previously served in Germany from March 1978 to November 1980.  He was awarded the Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, Parachutist Badge, Parachute Rigger Badge, Army Achievement Medal, and the Army Good Conduct Medal.

4.  On 7 December 1987, the applicant received a monthly counseling from his sergeant who indicated his military appearance, attitude, and performance had been outstanding.

5.  On 29 January 1988, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.  His punishment included a suspended reduction to private first class (PFC)/E-3.  He elected not to appeal.

6.  On 28 January 1988, he participated in a command-directed urinalysis and his urine sample tested positive for marijuana.

7.  On 9 February 1988, he accepted NJP under the provisions of Article 15, UCMJ, for wrongfully using marijuana between 10 and 20 January 1988.  His punishment included a reduction to private (PV2)/E-2.  He elected not to appeal.

8.  On 5 April 1988, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12c, for misconduct - commission of a serious offense - abuse of illegal drugs. The commander also notified him that he intended to recommend his service be characterized as under honorable conditions (general).

9.  On 22 April 1988, he acknowledged receipt of the commander's intent to separate him and he was subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a separation board and a personal appearance before a separation board but he elected not to submit a statement in his own behalf.  He further indicated that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

10.  On 22 April 1988, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense - abuse of illegal drugs.  The immediate commander stated that the applicant demonstrated through his illegal use of drugs that he had no further benefit to the Army.

11.  On 22 April 1988, the applicant was notified to appear before an administrative separation board on 11 May 1988 to determine whether he should be discharged before the expiration of his term of service under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c.  He was also advised that the least favorable characterization of discharge he may receive is a general discharge.  He acknowledged receipt of the notification on the same date.

12.  On 12 May 1988, at 0920 hours, an administrative separation board convened at Fort Bragg, to determine if the applicant should be discharged by reason of abuse of illegal drugs.  The applicant was present with counsel.  The following statements were provided during the testimony:  Statement from Ms. FRC, a friend, who stated that on 18 January 1988 she was drinking at the time with the applicant when he fell asleep and that while he was asleep, she smoked marijuana and blew smoke into his nose and mouth; and a statement from Ms. GL, who states she was a witness to the events that occurred on 18 January 1988.

13.  The administrative separation board did not believe that the applicant tested positive for marijuana because of a passive inhalation.  The board believed that Ms. FRC's dates and times did not match, she claimed that she tried to wake him up 4 times, she claimed that she did not drink and only smoked, and she stated she did not smoke when everyone else was drinking and watching TV.  The board felt the applicant and Ms. FRC smoked together and she lied to protect 

him.  The board concluded that the applicant voluntarily ingested marijuana and recommended his discharge from the Army with a general discharge.  The board closed on 12 May 1988 at 1450 hours.

14.  On 18 May 1988, by memorandum, the applicant contended that he did not receive a fair hearing and alleged that two board members were biased and inexperienced, and did not believe either board member gave him a fair hearing.  He further asked that his years of faithful service and awards be taken into consideration.

15.  A legal review of the applicant's request for relief from the recommendations of the board was conducted.  The military attorney determined that after a thorough review of the board proceedings, all instances of bias were unfounded. He recommended denial of the applicant's request for relief.

16.  On 16 June 1988, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense - abuse of illegal drugs and directed his service be characterized as under honorable conditions (general).  On 5 July 1988, the applicant was discharged accordingly.

17.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged in the rank/grade of private (PV2)/E-2 under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - drug abuse, with a general discharge.  This form further confirms he completed 8 years, 2 months, and 1 day of total active service.

18.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

19.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include 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.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge 

or delegate approval authority for an honorable discharge under this provision of regulation.

20.  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 evidence of record shows the applicant committed a serious offense by unlawfully abusing illegal drugs as evidenced by his positive urinalysis for marijuana.  He provides no evidence to show the board members were biased.  Accordingly, his chain of command initiated separation action against him.  He appeared before an administrative separation board that considered the facts and circumstances of the case but recommended his discharge. 

2.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  Contrary to his argument that his discharge was based on one isolated incident, he had previously accepted NJP for failing to go at the time prescribed to his appointed place of duty.  He also accepted NJP on 9 February 1988 for wrongfully using marijuana that resulted in his reduction to PV2/E-2, which is correctly shown on his DD Form 214.

4.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20100025361



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ABCMR Record of Proceedings (cont)                                         AR20100025361



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