IN THE CASE OF:	  

		BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100027955 


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 an upgrade of his general discharge under honorable conditions to an honorable discharge.

2.  The applicant states he was young when he made a foolish mistake by using hashish while serving in Europe.  He was discharged and told he could apply for an upgrade of his discharge after 6 months provided he didn't get into any more trouble.

	a.  It has been over 25 years since he was discharged, he never got into any more trouble, and he would like to have his discharge changed to fully honorable.

	b.  He adds his father is a retired veteran and his two sons plan to join the Army.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and DD Form 257A (General Discharge Certificate).

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 and entered active duty in the Regular Army for a period of 4 years on 30 November 1983.  He was awarded military occupational specialty (MOS) 19D (Cavalry Scout).

3.  The applicant was assigned overseas to Germany on 24 April 1984.  He was advanced to private first class/pay grade E-3 on 1 October 1984.

4.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on three separate occasions for:

* wrongfully possessing some amount of marijuana in the hashish form on 4 December 1984
* wrongfully using marijuana on 24 January 1985
* failing to obey a lawful order issued by the squadron commander by consuming an alcoholic beverage in the billets on 29 March 1985

5.  U.S. Military Community Activity Bamberg memorandum, dated 29 April 1985, subject:  Synopsis of Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Rehabilitation Activities, shows the applicant was enrolled in ADAPCP Track I on 11 January 1985.  He was changed to Track II rehabilitation on 11 February 1985 and participated in 12 hours of awareness education.  He did not meet the rehabilitation treatment goal of no more drug-related incidents when he received a positive urinalysis.

6.  On 20 May 1985, the applicant's commander initiated action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, based on misconduct – abuse of illegal drugs.

	a.  The reasons for the proposed action were the applicant's wrongful possession of marijuana on 4 December 1984 and his subsequent identification as an abuser of illegal drugs by a positive urinalysis test on 24 January 1985.

	b.  The commander also noted the applicant failed to meet the minimum standards required of all service members.

7.  On 22 May 1985, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

	a.  He was advised he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He was also advised that as a result of the issuance of a discharge under other than honorable conditions he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he might expect to encounter substantial prejudice in civilian life.

	b.  The applicant elected to submit statements in his own behalf.

		(1)  Two noncommissioned officers attested to the applicant's outstanding performance as a heavy vehicle operator despite not having been formally trained in the MOS.

		(2)  The applicant disputed information summarized in the ADAPCP memorandum.  He denied that the bottle found in his locker on 4 December 1984 contained cannabis residue.  He noted he was enrolled in the ADAPCP on 11 January 1985 and stated, "I did, in fact, quit smoking [marijuana] when I was told about the [ADAPCP] classes."  He noted he tested positive on 24 January 1985, which means the test would have detected that he smoked marijuana within the last 30 days, not just since his enrollment in the ADAPCP.  He asserted that his service as a Soldier in the U.S. Army had been honorable.

	c.  He acknowledged he understood he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

	d.  The applicant placed his signature on the document.

	e.  There is no indication the applicant's discharge would be upgraded after 6 months.

8.  The immediate and intermediate commanders recommended approval of the applicant's separation action.

9.  On 31 May 1985, the separation authority approved the chain of command's recommendation for discharge of the applicant and directed that he be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense (abuse of illegal drugs) – and issued an Under Honorable Conditions Discharge Certificate.

10.  The applicant's DD Form 214 shows he was discharged on 10 June 1985 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – drug abuse – with his service characterized as under honorable conditions.  He completed 1 year, 6 months, and 11 days of net active service.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 (one for which a punitive discharge is warranted and authorized), and convictions by civil authorities.  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 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 the regulation.

	b.  Chapter 3, 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 applicant contends his general discharge should be upgraded to honorable because he was young and made a foolish mistake, he was told his discharge would be upgraded 6 months after he was discharged provided he didn't get into any more trouble, and it has been over 25 years since he was discharged and he has not gotten into any more trouble.

2.  Considering the applicant satisfactorily completed training and was awarded MOS 19D, his contention that he was young and/or immature is not supported by the evidence of record.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

3.  Records show the applicant acknowledged he understood he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.  There is no evidence he was advised that his discharge would be upgraded 6 months after his discharge.  Thus, the applicant's contention is not supported by the evidence of record.

4.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense (abuse of illegal drugs) – was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the reasons were appropriate and equitable.

5.  Records show the applicant received NJP on three separate occasions, all of which involved the wrongful possession or use of drugs and/or alcohol.  In addition to a positive urinalysis, the applicant acknowledged in a statement that he had quit smoking marijuana on 11 January 1985.  Thus, by his own admission, the applicant acknowledged his wrongful use of marijuana and also implied that he had used it more than once.  Moreover, he completed only about 1 year and 6 months of his 4-year active duty obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

6.  The applicant's post-service conduct was considered; however, it is not sufficiently mitigating to warrant relief.

7.  In view of all of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100027955



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ABCMR Record of Proceedings (cont)                                         AR20100027955



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