IN THE CASE OF:	  

		BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20110003384 


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 an upgrade of his under other than honorable conditions discharge to a fully honorable or a general discharge.

2.  The applicant states he served his country for 55 months but he made a mistake by testing positive for drugs twice within 30 days.  He chose to get out, he was not court-martialed.  At the time, he celebrated the birth of his son the wrong way.  The drug was in his system when he was tested the second time.  He chose to get out because he had a job offer and he had made up his mind.  He only had four Article 15s. 

3.  The applicant did not provide any 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.  The applicant's records show he enlisted in the Regular Army (RA) for 3 years on 4 September 1979 and held military occupational specialty 64C (Motor Transport Operator).  He also executed a 4-year reenlistment in the RA on 23 July 1982 and attained the rank/grade of specialist four/E-4.

3.  He served in Germany from 5 February 1980 to 12 January 1982 and in Alaska from on or about 1 October 1984 to 17 March 1986.  He was awarded the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, Overseas Service Ribbon, Army Good Conduct Medal, and Aircraft Crewman Badge.

4.  On 18 May 1983, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for possessing marijuana. 

5.  He was enrolled in the Army Drug and Alcohol Prevention and Control Program (ADAPCP); however, he tested positive for illegal drugs on 12 March 1985.  He was reenrolled in ADAPCP at the Community Counseling Center, Fort Richardson, AK.

6.  On 17 April 1985, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct - abuse of illegal drugs.  The immediate commander recommended the issuance of a general discharge.

7.  On 3 May 1985, he acknowledged receipt of the commander's intent to separate him.  He requested, in effect, a rehabilitation transfer as an alternative to the separation action so that he could have a second chance to take responsibility and gain his trust.

8.  On 9 May 1985, his intermediate commander disapproved the request for discharge and ordered the applicant's transfer to another unit as a rehabilitation measure.

9.  On 19 November 1985, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using cocaine.

10.  On 13 February 1986, he again accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana. 


11.  On 7 January 1986, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 
14-12c of Army Regulation 635-200 for misconduct - abuse of illegal drugs.  

12.  The applicant acknowledged receipt of the commander's intent to separate him.  He consulted with counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a board of officers and personal appearance before a board of officers.  However, he elected not to submit a statement on his own behalf.

13.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.  He further elected not submit a statement in his own behalf.

14.  On 7 January 1986, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct.  

15.  On 13 January 1986, his intermediate and senior commanders reviewed the separation recommendation and recommended approval.  

16.  On 14 February 1986, the applicant withdrew his option for a board in his discharge proceedings.  He waived consideration of his case by a board of officers as well as a personal appearance before such board.   

17.  On 5 March 1986, the separation authority approved the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200 by reason of misconduct - abuse of illegal drugs and directed the issuance of an under other than honorable condition discharge.  Accordingly, the applicant was discharged on 17 March 1986.

18.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 14 of Army Regulation 635-200 with a character of service of under other than honorable conditions.  This form also confirms he completed 6 years, 6 months, and 14 days of creditable active military service.

19.  On 24 February 1988, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

20.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action was taken to separate a member for misconduct when it was clearly established rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter; however, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

21.  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.

22.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed a serious offense by unlawfully abusing illegal drugs on multiple occasions.   Accordingly, his chain of command initiated separation action against him.  He initially elected a board of officers and appearance before such board.  However, he later waived this right. 

2.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  Contrary to his argument that his discharge was based on the fact that he tested positive twice for drugs within 30 days, the evidence shows he abused illegal drugs on four separate occasions.  He was enrolled in the ADAPCP and was provided a transfer in an effort to rehabilitate him.  However, he failed to do the right thing. 

4.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  His repeated misconduct and failure to respond to counseling by members of the chain of command diminished the quality of his service.

5.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to an honorable or general discharge.

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)                                         AR20110003384



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ABCMR Record of Proceedings (cont)                                         AR20110003384



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