IN THE CASE OF:	

		BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110008730 


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 be upgraded to an honorable discharge.

2.  He states he made mistakes at an early age due to stupidity, but he has matured and he desires an upgrade of his discharge. 

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a Department of Veterans Affairs letter. 

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 was born on 26 March 1964.  His military records show he enlisted in the Regular Army on 1 September 1983.  He completed training and was awarded the military occupational specialty of lift and load equipment operator.  The highest rank/grade he held was specialist/pay grade E-4.

3.  A DA Form 2496 (Disposition Form), dated 16 April 1985, indicated he was enrolled in the Alcohol and Drug Abuse Prevention and Control Program.

4.  He was charged with wrongfully using marijuana between 24 March and
2 April 1985.  The results of a summary court-martial, dated 4 July 1985, indicate he pled not guilty and he was found guilty of the charge and specification.

5.  On 12 August 1986, he accepted nonjudicial punishment for wrongfully using marijuana on or about 12 June 1986.

6.  On 18 November 1986, his commander notified him that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct - abuse of illegal drugs.

7.  On 21 November 1986, he was advised by consulting counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct, and its effects, the rights available to him, and the effect of a waiver of his rights.  He waived his rights in conjunction with this consultation.

8.  On 5 December 1986, the separation authority directed that he be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, and the issuance of a general discharge.

9.  On 11 December 1986, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 3 years, 3 months, and 11 days of active military service.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and provides that 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.  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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  Initially, a summary court-martial convicted the applicant of wrongfully using marijuana and then he received nonjudicial punishment for wrongfully using marijuana.  His reason for separation was misconduct, drug abuse.

2.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

3.  The available evidence confirms his rights were protected throughout the discharge process.

4.  Records show he was 22 years old at the time he committed the offense for which he was discharged.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

5.  In view of the foregoing, there is an insufficient basis for granting his request.

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)                                         AR20110008730



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ABCMR Record of Proceedings (cont)                                         AR20110008730



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