IN THE CASE OF:	  

		BOARD DATE:	  26 July 2011

		DOCKET NUMBER:  AR20110000984 


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 general discharge under honorable conditions be upgraded to honorable.

2.  The applicant states he believes his discharge was unjust and harsh.

3.  The applicant provides no additional 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.  On 7 March 1985, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 91A1P (medical specialist with parachutist qualification).

3.  On 10 October 1985, the applicant was assigned for duty as a medical specialist with the 307th Engineer Battalion, 82nd Airborne Division, Fort Bragg, North Carolina.

4.  On or about 8 January 1986, the applicant accepted nonjudicial punishment (NJP) for wrongful use of marijuana.

5.  On 18 February 1986, the applicant was convicted by a summary court-martial of wrongful use of marijuana and of breaking restriction.

6.  On 19 March 1986, a mental status evaluation reported the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal, and his memory good.  The applicant was mentally responsible and he met medical fitness standards for retention.  He had the mental capacity to understand and participate in separation proceedings.

7.  On 28 March 1986, the applicant's company commander notified him of his intention to take action to discharge him for commission of a serious offense based on being a two-time drug offender.  The commander informed him that he could receive either an honorable or a general characterization of service.

8.  The applicant consulted with counsel concerning his rights.  He understood he could expect to encounter extreme prejudice in civilian life as a result of a general discharge.  He indicated a statement would be submitted within 4 days; however, none is contained in the available records.

9.  On 28 March 1986, the applicant's commander recommended separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, due to the commission of a serious offense – illegal drug use.  He stated the applicant refused to conform to the standards required of every Soldier.  His continued use of drugs could not and would not be tolerated.  The commander's request indicates a waiver of the rehabilitative transfer requirement was attached; however, it is not available for review.

10.  On 7 April 1986, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under honorable conditions.  Accordingly, the applicant was discharged under honorable conditions on 17 April 1986.  He completed 1 year, 1 month, and 11 days of creditable active duty service.

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

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 the commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  The misconduct is considered a commission of a serious military or civil offense when the specific circumstances of the offense warrant separation and a punitive discharge is or would be authorized for the same or a closely-related offense under the Uniform Code of Military Justice (UCMJ).

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 112a for wrongful use of marijuana is a punitive discharge and confinement for 2 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to honorable because he believes it was unjust and harsh.

2.  The record shows the applicant accepted NJP for wrongful use of marijuana.  He was also convicted by a summary court-martial for illegal use of marijuana.  The UCMJ authorizes up to a 2-year period of confinement and a punitive discharge for the illegal use of marijuana.  The commander's decision to administratively discharge him resulted in a far lesser punishment and was not unjust or harsh.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all of the facts of the case.

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)                                         AR20110000984



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ABCMR Record of Proceedings (cont)                                         AR20110000984



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