IN THE CASE OF:	 

		BOARD DATE:	18 August 2011 

		DOCKET NUMBER:  AR20110003167 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states he took a drug test as an E-4.  The results came back after he was promoted to E-5.  The policy at the time stated Soldiers in grades 
E-4 and below were to get a second chance.  He was not afforded that option.  This was his only mistake as a young man and he hopes he can say he honorably served his country. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 18 August 1981.  He completed training and was awarded military occupational specialty 24C (Improved Hawk Firing Section Mechanic).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

   a.  item 5 (Oversea Service) he served in U.S. Army Europe (Germany) from 18 November 1983 through 20 August  1985;

   b.  item 9 (Awards, Decorations and Campaigns) the Army Service Ribbon, Army Good Conduct Medal (1st Award), Marksman Marksmanship Qualification Badge with Rifle  Bar, and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar; and

   c.  item 18 (Appointments and Reductions) he was promoted to specialist five (SP5)/E-5 on 1 April 1985.

4.  A 15 May 1985 DA Form 2496 (Disposition Form) subject:  Urinalysis Report, lists the applicant’s name as testing positive for THC (Tetrahydrocannabinol).

5.  In a sworn statement the applicant provided at 0200 hours, 30 June 1985, he admitted to purchasing and using marijuana that morning and the previous evening.  He also admitted to knowing that marijuana was being sold out of his house, but denied that he had anything to do with that selling.
 
6.  By an undated memorandum, the applicant's commander notified the applicant that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12c.  The reason for his proposed action was use of marijuana.  The applicant was advised of his rights and of the separation procedures involved.

7.  The applicant consulted with counsel.  He acknowledged his rights and elected to not submit a statement in his own behalf.  

8.  The immediate and intermediate commanders recommended approval of the separation action. 

9.  The appropriate authority approved the recommendation and directed the issuance of a General Discharge Certificate.

10.  Accordingly, he was discharged on 21 August 1985, with a general discharge.  He had completed 4 years and 4 days of total active service.
11.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, 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 minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense (one for which a punitive discharge is warranted and authorized), 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  At the time, paragraph 14-12 (Abuse of Illegal Drugs) provides that first-time drug offenders in grades E5-E9 will be processed for separation upon discovery of a drug offense.  First-time offenders in grades E1-E4 may be processed for separation.  Second-time drug offenders in grades E1-E9 must be processed for separation.

   b.  Chapter 3, 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 the applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct based on commission of a serious offense was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the reasons therefore were appropriate and equitable.

2.  The evidence also shows that the applicant tested positive for THC as a result of testing on or about 15 May 1985, 45 days after he was promoted to SP5.  Processing for separation was mandatory.  He also admitted to additional use of marijuana on or about 30 June 1985.  
3.  The applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110003167



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1