IN THE CASE OF:	  

		BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20110002291 


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 was young and did stupid things.  He had no guidance or discipline.  Now he is a proud husband and father who is an asset to his community.

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 28 December 1981, the applicant, at almost 19 years of age, enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 64C (Motor Transport Operator).

3.  On 26 August 1983, the applicant was assigned for duty as an assistant heavy vehicle driver with the 377th Transportation Company, located in the Federal Republic of Germany.

4.  On 21 September 1983, the applicant tested positive for wrongful use of marijuana.

5.  On 1 January 1984, the applicant was advanced to specialist four, pay grade E-4.

6.  On 22 March 1984, the applicant again tested positive for wrongful use of marijuana.

7.  On 3 April 1984, the applicant accepted nonjudicial punishment (NJP) for the wrongful use of marijuana on two occasions.

8.  On 8 May 1984, the applicant's company commander notified him of his intention to take action to discharge him for commission of a serious offense based on his two positive tests for wrongful use of marijuana.  The commander informed him that he could receive either an honorable or a general characterization of service.

9.  The applicant refused to consult with counsel concerning his rights.  He stated that he understood he could expect to encounter extreme prejudice in civilian life as a result of a general discharge.  He elected not to submit a statement in his own behalf.

10.  On 17 May 1984, 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.  The commander did not consider it feasible or appropriate to accomplish other disposition of this case because the applicant's type of misconduct is prejudicial to good order and discipline.

11.  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 
15 June 1984.  He had completed 2 years, 5 months, and 18 days of creditable active duty service.
12.  On 11 September 1989, the Army Discharge Review Board considered and denied the applicant's request for an upgrade of his discharge.

13.  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).

14.  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 was young and undisciplined at the time.

2.  The record shows the applicant twice tested positive for wrongful use of marijuana and had accepted NJP for this misconduct.

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.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was almost 19 years of age when he enlisted.  He had satisfactorily completed training and had attained the rank of specialist four, pay grade E-4.  His satisfactory performance shows that he was neither too young nor immature to serve honorably.

5.  The applicant’s claim of now being a proud husband and father who is an asset to his community does not sufficiently mitigate his repeated acts of drug use during his military service.
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)                                         AR20110002291





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ABCMR Record of Proceedings (cont)                                         AR20110002291



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