IN THE CASE OF:	  

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20100029180 


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 under other than honorable conditions discharge.

2.  The applicant states that the drug test he received was invalid and that he has been drug free for 20 years.

3.  The applicant provides a copy of a letter from the National Personnel Records Center, dated 7 October 2010.

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 27 March 1984.  He completed his initial entry training and was awarded military occupational specialty 11B (Infantryman).  

3.  The applicant's military personnel record contains numerous DA Forms 4856 (General Counseling Forms) showing he was counseled:

* on 27 March 1985, for failure to repair on 18 March 1985
* on 28 March 1985, for relief from his duties as a team leader
* on 10 May 1985, for being absent without leave (AWOL) from 1 April to 8 April 1985
* on 4 June 1985, for wrongful use of a controlled substance

4.  He accepted nonjudicial punishment for these offenses:

* on 10 May 1985, for AWOL from 1 April to 8 April 1985
* on 4 June 1985, for wrongful use of a controlled substance - marijuana

5.  A mental status evaluation found the applicant met the retention requirements of chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  He was found to have the mental capacity to understand and participate in separation administrative proceedings and that he was mentally responsible.   

6.  On 17 June 1985, the applicant's summary court-martial convening authority imposed a bar to reenlistment

7.  On 20 June 1985, the applicant’s commander notified him that action was being initiated to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
paragraph 14-12b for a pattern of misconduct.  The justification for initiating his separation action included a positive urinalysis on 22 April 1985, a period of AWOL less than 30 days, and several minor disciplinary infractions including larceny of Government property.  The applicant acknowledged receipt of his separation notification.

8.  The commander advised him of his right to be represented by counsel, to submit written statements in his own behalf, to obtain copies of supporting documents, to waive any of these rights, or to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge.  

9.  On 25 June 1985, he consulted with counsel.  He waived his right to a board of officers and did not elect to submit personal statements on his own behalf.  He indicated he understood that he could expect to encounter prejudice in civilian life with a general discharge under honorable conditions or an under other than honorable conditions discharge.  He further acknowledged he could apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge and that he would be ineligible to enlist in the U.S. Army for a 2-year period after his separation.

10.  On 10 July 1985, the applicant's commander recommended him for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct.  

11.  The approval authority approved the applicant's discharge and directed issuance of an under other than honorable conditions discharge.  

12.  On 22 August 1985, the applicant was discharged.  He was issued a DD Form 214 confirming he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by misconduct—drug abuse with an under other than honorable conditions discharge.  

13.  The applicant did not apply to the ADRB within its statute of limitations of 
15 years.  

14.  References:

	 a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation 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 below E-5 may be processed after a first drug offense and must be processed for separation after a second offense.  Abuse of illegal drugs is serious misconduct.  Relevant facts may mitigate the nature of the offense with a single drug abuse offense combined with one or more minor disciplinary infractions or incidents or other misconduct and processed for separation under paragraph 14-12a—minor disciplinary infractions or paragraph 14-12b—a pattern of misconduct.  The issuance of 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.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice (UCMJ).  The maximum punishment for wrongful use of a controlled substance is a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for 2 years, reduction to the lowest enlisted grade and total forfeiture of all pay and allowances.
   
   e.  Army Regulation 15-185 (Army Board for Correction of Military Records [ABCMR]) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity deciding cases on the evidence of record.  It is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  
   
DISCUSSION AND CONCLUSIONS:

1.  As the ABCMR is not an investigative body, it decides cases based on the evidence of record found within a former service member's record and evidence submitted by them with their application.  The applicant has not submitted any evidence to show that his drug test was invalid.

2.  Based on the evidence of record, the applicant's company commander initiated separation action against him for wrongful use of an illegal substance and other disciplinary infractions including AWOL for less than 30 days. 

3.  A positive urinalysis is a violation of the UCMJ with a maximum punishment of a punitive discharge, confinement for 2 years, reduction to the lowest enlisted grade, and total forfeiture of all pay and allowances.  

4.  The applicant's chain of command showed him leniency by administratively discharging him under the provisions of Army Regulation 635-200.

5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
6.  In view of the above, there is insufficient evidence to upgrade the applicant's under other than honorable conditions 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)                                         AR20100029180



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ABCMR Record of Proceedings (cont)                                         AR20100029180



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