IN THE CASE OF:	

		BOARD DATE:	    13 October 2011

		DOCKET NUMBER:  AR20110006630 


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 discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states he served his country with the utmost honor and pride.

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.  The applicant enlisted in the Regular Army on 8 August 1977 and held military occupational specialty 31M (Multichannel Communication Equipment Operator).  He also executed two 3-year reenlistments on 14 February 1980 and 25 April 1983.  He attained the rank/grade of sergeant/E-5.

3.  He served in Germany from January 1978 to August 1980 and July 1982 to July 1985.  His records show he was awarded the Army Service Ribbon, Overseas Service Ribbon, Noncommissioned Officer Professional Development Ribbon, Army Good Conduct Medal (3rd Award), Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Expert Qualification Badge with Grenade Bar.

4.  On 12 March 1985, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana on or about 16 November 1984 (positive urinalysis).

5.  On 30 June 1985, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his misconduct.  The applicant was furnished with a copy of this bar but he elected not to submit a statement on his own behalf.  The bar was ultimately approved by the approval authority.

6.  On 18 July 1985, the applicant's immediate commander notified him of his intent to initiate separation action against him for misconduct (commission of a serious offense – abuse of illegal drugs) in accordance with paragraph 14-12c of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The immediate commander stated the applicant performed all assigned duties prior to testing positive.  However, since discovery of the drug abuse, he had not taken steps to correct the abuse.  Counseling had been of no avail and the applicant expressed a strong desire to be discharged.

7.  On 18 July 1985, the applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel, and he was advised of the basis for the contemplated separation 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 waived consideration of his case by a separation board and a personal appearance before a separation board and he elected not to submit a statement in his own behalf.  He further indicated that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions 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.

8.  On 19 July 1985, his immediate commander initiated separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200 for misconduct (commission of a serious offense – abuse of illegal drugs).

9.  On 26 July 1985, his intermediate commander recommended approval of the applicant's discharge.

10.  Consistent with the chain of command's recommendation and subsequent to a legal review for sufficiency, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct (commission of a serious offense – abuse of illegal drugs) and directed his service be characterized as under other than honorable conditions.  On 25 October 1985, the applicant was accordingly discharged.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty)  he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct (commission of a serious offense – abuse of illegal drugs) with a character of service of under other than honorable conditions.  This form further shows he completed a total of 8 years, 2 months, and 17 days of creditable active military service.

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, in effect at the time, 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 would be taken to separate a member for misconduct when it was clearly established that 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.

14.  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.

15.  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.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed a serious offense by unlawfully abusing illegal drugs as evidenced by his positive urinalysis for marijuana.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The applicant's 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.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge to either honorable or general under honorable conditions.  Therefore, he is not entitled to the 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 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)                                         AR20110006630



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ABCMR Record of Proceedings (cont)                                         AR20110006630



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