IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100030335 


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 his discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states:

* He was given an administrative discharge for using marijuana but he never smoked any
* He was not provided any legal counsel for his discharge
* His family has encouraged him to correct this inequity and injustice

3.  The applicant provides no documentary evidence.

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.  He enlisted in the Regular Army on 25 March 1974 for a period of 3 years.  He completed his training and was awarded military occupational specialty (MOS) 95B (military police) and later MOS 63B (light wheel vehicle mechanic).  On 
19 May 1977, he was honorably discharged for immediate reenlistment.  On 
20 May 1977, he reenlisted for a period of 3 years.  On 9 October 1979, he was honorably discharged for immediate reenlistment.  He reenlisted on 10 October 1979 for a period of 6 years.  He attained the rank of staff sergeant on 9 August 1982.   

3.  On 19 September 1983, nonjudicial punishment (NJP) was imposed against the applicant for attempted larceny.  

4.  On 7 November 1983, the applicant's unit commander initiated separation proceedings under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense).  He cited that the applicant tested positive on a urinalysis administered on 1 September 1983.

5.  On 16 November 1983, he consulted with counsel and requested consideration of his case by a board of officers.  

6.  A board of officers convened on 31 January 1984 and the applicant appeared with counsel.  The board of officers found the applicant unacceptable for further retention in the military due to commission of a serious offense and recommended that he be discharged from the military under the provisions of Army Regulation 635-200, paragraph 14-12c, with the issuance of an under other than honorable conditions discharge.  During the proceedings the applicant stated "The only drug I used before now is marijuana and right now I am in the process of trying to help myself to counteract the feeling of wanting to smoke marijuana."  

7.  On 21 February 1984, the separation authority approved the findings and recommendations and directed the issuance of an under other than honorable conditions discharge.

8.  On 12 March 1984, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (drug abuse) with an under other than honorable conditions discharge.  He had served a total of 9 years, 11 months, and 18 days of creditable active service.

9.  There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations. 

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct the issuance of a general discharge if such was merited by the member's overall record.

11.  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.  Although he now contends he never smoked marijuana, he admitted to smoking marijuana during the board proceedings conducted on 31 January 1984.    

2.  He contends he was not provided any legal counsel for his discharge.  However, the available evidence shows he appeared with counsel at the board proceedings.

3.  His record of service during his last enlistment included one NJP and a positive urinalysis for using marijuana.  He was a staff sergeant.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

5.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.





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)                                         AR20100030335



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ABCMR Record of Proceedings (cont)                                         AR20100030335



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