IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100028897 


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 upgrade of his general, under honorable conditions discharge (GD) to an honorable discharge (HD).

2.  The applicant states illegal drug use has not been an issue for him since his discharge from the Army.

3.  The applicant provides no evidentiary documents.

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 (RA) on 5 August 1988.  He was trained in, awarded, and served in military occupational specialty (MOS) 54B (Chemical Operations Specialist).
3.  His Official Military Personnel File (OMPF) contains a Memorandum of Reprimand dated 14 June 1989, issued to him for driving while intoxicated or under the influence of alcohol on 18 May 1989.  He was enrolled in the Alcohol and Drug Abuse Prevention and Control Program on 28 June 1989.

4.   On 27 November 1989, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the wrongful use of marijuana.

5.  On 21 December 1989, the applicant underwent a mental status evaluation that showed the following:

* his behavior and thought content were normal
* he was fully alert and oriented
* his mood was unremarkable
* his thinking process was clear
* his memory was good
* he had the mental capacity to understand and participate in separation proceedings.

6.  On 17 January 1990, the unit commander notified the applicant that he was initiating action to separate him under the provisions Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct - commission of a serious offense, with an under other than honorable conditions discharge based on the following reasons:

	a.  for being apprehended for driving while intoxicated on 18 May 1989;

   b.  for testing positive for marijuana (THC) on 20 September 1989; and

	c.  for being arrested for possession of marijuana on 13 January 1990.

7.  On 19 January 1990, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects.  The applicant completed his election of rights indicating his options to:

   a.  waive consideration of his case by a board of officers contingent upon receiving a characterization of service no less favorable than a GD; and
   
	b.  not to make a statement in his own behalf.


8.  On 29 May 1990, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, with issuance of a GD.  On 12 March 1990, the applicant was discharged accordingly.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of “Abuse of Illegal Drugs", with a GD.  He completed 1 year, 7 months, and 8 days of creditable active service.

10.  On 29 November 2010, the applicant petitioned the Army Discharge Review Board for an upgrade of his GD.  He exceeded that board's 15-year statute of limitation.

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

	a.  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.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An honorable or a general discharge may be awarded by the separation authority if warranted by the member's overall record of service; however, an under other than honorable conditions discharge is normally considered appropriate for members separated under these provisions.

	b.  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 contentions that his GD should be upgraded to a HD because illegal drugs have not been an issue for him since his discharge is insufficiently mitigating to grant the requested relief in this case.


2.  The evidence of record confirms that the applicant accepted NJP for wrongfully using marijuana.  It also confirms he was arrested for possession of this substance.  By violating the Army's policy not to possess or use illegal drugs, he compromised the trust and confidence placed in him as a Soldier.  He had the duty to support and abide by the Army's drug policies.  By using illegal drugs, he knowingly risked a military career and clearly diminished the overall quality of his service below that meriting an honorable discharge.

3.  The evidence of record also confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20100028897





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ABCMR Record of Proceedings (cont)                                         AR20100028897



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