IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110006059 


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 that his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states at the time of his discharge he was not very mature and he could not handle multiple major stressful situations.  He turned to drinking excessively and he smoked pot twice to forget his problems and ease his pain.  He had a new wife and they were in different places when she had a miscarriage. His misconduct started at that point.  He states he served 6 years in the U.S. Army Reserve (USAR) and was promoted to sergeant/pay grade E-5 prior to his enlistment in the Regular Army (RA).

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 30 August 1980
* DD Form 214 with a separation date of 21 January 1988
* a transcript from Penn Foster

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.  He enlisted in the RA, at the age of 24 years, on 31 October 1985 in pay grade E-1.  He completed basic combat and advanced individual training and was awarded military occupational specialty 91A (Medical Specialist).  He had previously served in the USAR for 5 years, 5 months, and 23 days and he had been promoted to sergeant/pay grade E-5.

3.  He accepted nonjudicial punishment (NJP) on:

* 14 August 1987 for wrongful use of marijuana between 21 June and 
22 July 1987
* 17 December 1987 for wrongful use of marijuana between 18 October and 19 November 1987

4.  On 17 December 1987, the applicant received a mental status evaluation.  According to the DA Form 3822-R (Report of Mental Status Evaluation) the examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings.

5.  On 17 December 1987, the applicant's commander notified him that action was being initiated to separate him under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) based on his being a second time drug offender.  The commander advised the applicant of his right to:

* consult with counsel
* obtain copies of documents that would be sent to the separation authority supporting the proposed separation action
* request a hearing before an administrative separation board if he had more than 6 years service
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge
6.  On 23 December 1987, the applicant submitted a statement acknowledging he had been advised by his consulting counsel of the basis for the contemplated separation action against him.  He had been afforded the opportunity to consult with appointed counsel, or military counsel of his own choice and he waived:

* consideration of his case by an administrative separation board
* a personal appearance before an administrative separation board
* submission of statements in his own behalf
* consulting counsel and representation by military and/or civilian counsel 

7.  His commander recommended that he be eliminated from the service before the expiration of his term of service by reason of him being a second time drug offender.

8.  On 7 January 1988, the appropriate authority approved the recommendation for the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 with the issuance of a General Discharge Certificate.  

9.  He was discharged on 21 January 1988 under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - Abuse of Illegal Drugs.

10.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

11.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a provided that an honorable discharge was a separation with honor and entitled 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.

	b.  Chapter 14 stated individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.

	c.  paragraph 14-3 stated when a Soldier has completed entry level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  He contends he was very immature and could not handle multiple major stressful situations.  The evidence shows he was 24 years of age at the time of his enlistment in the RA and he was 26 and 27 years of age at time of his drug offenses.  Many Soldiers who were enlisted at an even younger age went on to complete their enlistments and receive honorable discharges.  Therefore, his age cannot be used as a reason to change a properly-issued discharge.
 
2.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

3.  A discharge under other than honorable conditions was normally considered appropriate when a member was discharged under the provisions of chapter 14 of Army Regulation 635-200.  Therefore, it is clear the discharge authority considered his prior service in that he directed the applicant be issued a General Discharge Certificate.

4.  He accepted NJP on two occasions for wrongful use of marijuana.  Therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His entire record of service was considered.  There is no record or documentary evidence of acts of valor.  

5.  In view of the above, there is an insufficient basis to upgrade his discharge to an honorable 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)                                         AR20110006059



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ABCMR Record of Proceedings (cont)                                         AR20110006059



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