IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100026330 


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 that his general discharge be upgraded to an honorable discharge.

2.  The applicant states his discharge was based on a one-time drug test in 7 years of service and that he was not given a second test to verify that the charges of a positive drug test were true.  He adds that he had no reprimands of any kind during his service.

3.  The applicant provides no additional evidence in support of his application.

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.  His military records show he enlisted in the Regular Army on 27 June 1979.  He completed initial active duty for training and was awarded the military occupational specialty of infantryman.  He reenlisted for 4 years on 20 April 1983.  The highest grade he held was pay grade E-5.

3.  On 14 February 1986, he accepted nonjudicial punishment (NJP) for wrongfully and unlawfully making a false statement under oath that his vehicle had been struck by an unknown vehicle while it was parked unattended, a statement that he did not then believe to be true.

4.  On 11 September 1986, he accepted NJP for wrongfully using marijuana and for assaulting K____ G____-D____ by unlawfully pushing her into a fence.

5.  On 24 September 1986, his commander advised him that he was initiating action to separate him under the provisions of paragraph 14-12c of Army Regulation 635-200 (Personnel Separations – Enlisted Separations).  His commander stated the reasons for his proposed action were that the applicant had received NJP for rendering a false statement under oath and for the use of marijuana and assault.  His commander advised him of the basis for the contemplated separation action and its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He chose not to submit a statement on his own behalf and he stated that he did not want to see legal counsel in reference to this action.

6.  On 30 September 1986, the appropriate authority approved his separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense (abuse of illegal drugs) – and directed that he receive a general discharge.

7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 20 October 1986 with a characterization of service of under honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense.  He completed 7 years, 3 months, and 24 days of active military service.

8.  On 20 November 1987, the Army Discharge Review Board denied his request for an upgrade of his general discharge.  During the review process discrepancies were discovered in his records and the discharge documents originally issued to him.  A DD Form 215 (Correction to DD Form 214) was issued correcting these errors.  The DD Form 215 shows the separation authority for his discharge as Army Regulation 635-200, paragraph 14-12d, and the reason for his separation was changed to show misconduct – abuse of illegal drugs.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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.  A discharge under other than honorable conditions is 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.

10.  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.  His records show he received NJP for rendering a false statement under oath and for the use of marijuana and assault.  Such conduct was certainly not honorable.

2.  Based on the applicant's record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

3.  The available evidence confirms the applicant's rights were protected throughout the discharge process.

4.  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 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)                                         AR20100026330



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ABCMR Record of Proceedings (cont)                                         AR20100026330



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