IN THE CASE OF:	  

		BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100025519 


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 correction of the following items on his DD Form 214 (Certificate of Release or Discharge from Active Duty) and the issuance of a new separation document: 

   a.  item 24 (Character of Service), be upgraded to honorable; and 

   b.  item 28 (Narrative Reason for Separation) be changed to "Secretarial Authority."

2.  He essentially states:

   a.  items 24, 25 (Separation Authority), and item 28 on his DD Form 214 overstate the seriousness of his offense;

   b.  in or about January 1986 a random urinalysis screening revealed the presence of "THC" [Tetrahydrocannabinol, which is a component of marijuana];

   c.  he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for one count of using marijuana.  His punishment was 45 days of extra duty and a forfeiture of not more than one half months pay for 2 months;

   d.  he did not abuse illegal drugs but smoked and inhaled marijuana on one occasion which resulted in a "dirty urine" screen;
   
   e.  Webster's dictionary defines abuse as a corrupt pattern or practice;  

   f.  on the 43rd day of performing extra duty he showed up late because he had a flat tire.  He made his command aware of the situation, but the sergeant major told him that he would receive an additional Field Grade Article-15; and 
   
   g.  therefore, he was convicted by a Field Grade Article 15 of violating Article 86, being absent without leave, and he was given an additional 45 days of extra duty and a forfeiture of not more than one half months pay for 2 months.
   
3.  He provides:

* DD Form 214
* a 3 page self-authored affidavit

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 on 25 February 1985.  He completed the training requirements and he was awarded military occupational specialty 76W (Petroleum Supply Specialist).

3.  The available evidence shows that on 31 December 1985 the applicant was counseled and informed that the results of his urinalysis conducted on 
2 December 1985 came back positive for "THC" marijuana/cocaine.  He was also informed that separation action would be initiated against him in accordance with chapter 14, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  

4.  He received nonjudicial punishment under Article 15, UCMJ on 6 January 1986 for wrongful use of cocaine and marijuana between 3 November and 2 December 1985, which was detected by biochemical testing of a urine sample that he submitted on 2 December 1985.  His punishment included reduction to private/E-1, a forfeiture of $319.00 pay for 2 months, and 45 days of extra duty. 

5.  On 10 February 1986, he received nonjudicial punishment under Article 15, UCMJ, for being absent from his appointed place of duty on 2 and 31 January 1986.  His punishment included a forfeiture of $319.00 pay for 1 month and 45 days of extra duty.

6.  On 21 January 1986, he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.

7.  On the same date, he acknowledged receipt of the proposed separation action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and of the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by requesting that his case be considered by an administrative separation board.  He did not submit a statement in his own behalf.

8.  On 23 January 1986, his company commander recommended that he be discharged for a serious offense, misconduct (illegal use of drugs) under the provisions of paragraph 14-12(c), Army Regulation 635-200.  The commander also recommended that rehabilitative requirements be waived.

9.  On 28 January and 12 February 1986, his intermediate commanders recommended approval of the discharge action, respectively.

10.  On 25 February 1986, the approval authority approved the request for a waiver of rehabilitative requirements pertaining to the applicant. 

11.  On 18 March 1986, after consulting with counsel, he revoked his earlier request to have his chapter 14 action considered by an administrative separation board.

12.  On 3 April 1986, the separation authority approved the applicant’s discharge under the provisions of chapter 14-12c, Army Regulation 635-200, for commission of a serious offense and directed that he be issued a Under Other than Honorable Conditions Discharge Certificate.



13.  On 9 April 1986, he was discharged.  The DD Form 214 he was issued contains the following entries:

* item 12c (Net Active Service this Period) – 1 year, 1 month, and 15 days
* item 23 (Type of Separation) discharge
* item 24 under other than honorable conditions
* item 25 Army Regulation 635-200, paragraph 14-12c
* item 28 misconduct – commission of a serious offense

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

15.  References:
   
       a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

       b.  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.

	    c.  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.  

	    d.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  It states that item 28 will list the narrative reason for separation based on regulatory or other authority.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense with an under other than honorable conditions discharge.  

2.  The applicant's record shows he violated the Army's established drug abuse policy by possessing and using illegal drugs which compromised the trust and confidence placed in him as a Soldier.  The applicant had a duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant risked his military career.  

3.  Therefore, there is no justification or reason to change his character of service, the separation authority, or the narrative reason for separation as his separation was based on misconduct – commission of a serious offense.  Additionally, he has established no basis for the issuance of a new separation document.

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 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)                                         AR20100025519



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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