IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110001722 


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, in effect, an upgrade of his General Discharge (GD) under honorable conditions to an Honorable Discharge (HD).  

2.  The applicant states the reason for his discharge was due to flashbacks from the Gulf War, which caused him to become unstable.  The Department of Veterans Affairs Medical Center (VAMC) in Columbia, SC has since diagnosed him with Post -Traumatic Stress Disorder (PTSD).

3.  He did not provide any additional documentation. 

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.  His record shows that after having 8 months and 7 days of prior inactive service in the Delayed Entry Program, the applicant enlisted in the Regular Army on 5 July 1990.  After completion of training, he served in military occupational specialty 76V (Materiel Storage and Holding Specialist).

3.  A copy of his DA Form 2-1 (Personnel Qualification Record - Part II) shows in:

   a.  Item 5 (Oversea Service) - he served in Saudi Arabia in support of Desert Shield/Desert Storm from 18 December 1990 through 21 April 1991 and completed 15 months in the Federal Republic of Germany;

	b.  Item 9 (Awards, Decorations and Campaigns) - no valorous awards or special recognition; 

	c.  Item 18 (Appointments and Reductions) - the highest rank he attained while in the Army was Specialist/E-4; and

	d.  Item 21 (Time Lost) - no lost time  

4.  His records contain a copy of a DA Form 5180-R (Specimen Custody Document), dated 13 November 1992.  This document shows he was one of five individuals tested for Tetrahydrocannabinol (THC)/Marijuana on 19 October 1992 during the unit urinalysis testing.  His record also contains a General Counseling Form dated 23 November 1992, which shows he was counseled for testing positive for THC on 19 October 1992.  

5.  On 8 December 1992, he was given a complete physical examination and a mental status evaluation for the purpose of separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c (misconduct - commission of a serious offense).  He showed no sign of mental illness, was mentally responsible, and able to distinguish right from wrong.  He also had the mental capacity to understand and participate in board proceedings and he was medically qualified for separation under the provisions of chapter 14. 

6.  His record shows he was administered nonjudicial punishment (NJP) on 
11 December 1992 for testing positive for the use of a controlled substance between 19 September and 19 October 1992.  

7.  On 14 January 1993, the applicant was recommended for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c for commission of a serious offense.  The commander noted the reasons for his proposed actions were due to the applicant:
* committing a serious incident, which identified him as having a discipline problem 
* receiving NJP for the use of a controlled substance 
* committing a breach of discipline from which he could not recover

8.  The commander noted in the separation packet that the applicant had no other disciplinary actions, court-martial convictions, lost time, or other derogatory information in his record.  He also indicated that the applicant did not have any medical conditions which would merit consideration in the overall evaluation to separate him or in determining his character of service.  

9.  The applicant requested to consult with counsel in regard to separation under the provisions of Army Regulation 635-200, paragraph 14-12c and elected to submit a statement on his own behalf. 

10.  On 15 January 1993, the applicant’s appointed counsel prepared a memorandum addressed to the applicant’s chain of command.  In this document, counsel stated the initiation of separation action under the provisions of chapter 14 of Army Regulation 635-200 was inappropriate given the fact that the applicant was a self-referral into ADAPCP, prior to the unit urinalysis test in which he tested positive for the use of a controlled substance.  

11.  The applicant’s self-referral documentation into ADAPCP is not in the available record.  Neither is the documentation showing his commander took the appropriate action to refer him.  

12.  Counsel added that a separation under the provisions of Army Regulation 
635-200, chapter 9, for alcohol or drug abuse rehabilitation failure would have been the more equitable and appropriate separation action in this situation.  The applicant's self referral into ADAPCP is what formed the basis for the initiation of the chapter 14 action.  Counsel noted the applicant would receive prejudicial treatment in civilian life when applying for jobs if employers saw that he was separated pursuant to chapter 14, Army Regulation 635-200.  Counsel also noted that the applicant took the appropriate steps for rehabilitation and desired further rehabilitation.

13.  His records show the brigade commander, a colonel (COL/O-6), approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14-12c and directed the issuance of a General Discharge Certificate.  


14.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was issued a general discharge on 5 March 1993, under the provisions of chapter 14-12c, Army Regulation 635-200, due to misconduct – commission of a serious offense.  He had served 2 years, 8 months, and 1 day of total active service with no lost time.  His awards include the:

* Southwest Asia Service Medal with 3 bronze service stars
* Kuwait Liberation Medal
* Army Service Ribbon
* National Defense Service Medal

15.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge under that board’s 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 of that regulation contains the authority and outlines the procedures for discharging individuals because of alcohol and/or drug abuse.  

17.  Paragraph 9-1 of Army Regulation 635-200 states that a discharge is based upon alcohol or other drug abuse such as illegal, wrongful, or improper use of any controlled substance, alcohol, or other drug when the Soldier is enrolled in ADAPCP and the commander determines that further rehabilitation efforts are not practical, rendering the Soldier a rehabilitation failure.  This determination will be made in consultation with the rehabilitation team.  When not precluded by regulation, offenses involving alcohol or drugs may properly be the basis for discharge proceedings under chapter 14.  

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

19.  Paragraph 14-12c(2) provides for separation for commission of a serious offense such as abuse of illegal drugs.  


20.  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.  The evidence of record shows that after testing positive for THC, the applicant's chain of command initiated separation action against him under the provisions of Army Regulation 635-200, chapter 14-12c(2), for misconduct - commission of a serious offense.  There is no evidence that his separation was initiated as a result of rehabilitation failure.

2.  He consulted with counsel who in turn petitioned the applicant's chain of command to separate him under the provisions of Army Regulation 635-200, chapter 9 for drug abuse - rehabilitation failure.  Counsel further stated that separating the applicant pursuant to paragraph 14-12c of Army Regulation
635-200 would further inhibit the applicant’s future civilian employment and suggested he be separated under the provisions of chapter 9 of the same regulation for alcohol/drug abuse.

3.  Although there appears to be no error in his separation processing, the ABCMR has the discretion to upgrade the applicant’s discharge as a matter of equity.  His separation pursuant to paragraph 14-12c was based upon a single use of marijuana.  Given that his record is void of any other UCMJ actions, a general discharge may have been overly harsh, especially under today’s standards.  

4.  Therefore, in the interest of equity, it would be appropriate to change the applicant’s character of service to show “Honorable.”  

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  voiding his current DD Form 214 with a general character of service;

	b.  issuing him a new DD Form 214 with an honorable character of service; and

	c.  issuing him an Honorable Discharge Certificate, dated 5 March 1993, in lieu of the general discharge of the same date he now holds.



      ____________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)                                         AR20110001722



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ABCMR Record of Proceedings (cont)                                         AR20110001722



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