BOARD DATE:	20 October 2011

		DOCKET NUMBER:  AR20110009273


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 general discharge to an honorable discharge.

2.  The applicant states that in 1993 he was wrongly accused of a positive toxicology result, which he contested; however, his excuse was not accepted and he was given a general discharge.

3.  The applicant provides:

* A memorandum from the U.S. Army Reserve Command (USARC), dated 29 September 1994
* Orders 94-246-056, USARC, dated 26 September 1994
* General Discharge Certificate

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 USAR on 20 March 1981.  He completed training and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator). 

3.  On 19 February 1993, his unit was administered an unannounced drug urinalysis screening test in accordance with Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP)) and the 65th Army Reserve Command's (ARCOM) ADAPCP Memorandum of Instruction. 

4.  On 17 March 1993, the 65th ARCOM notified the applicant's chain of command that he had tested positive for cocaine on 19 February 1993.  

5.  On 17 April 1993, the applicant was informed and counseled by his company commander that he had tested positive for cocaine use on 19 February 1993. The company commander informed the applicant that he was eligible for drug rehabilitation as a first-time drug offender.  He told the applicant that the drug rehabilitation counseling must be done at a State certified substance abuse treatment center of his choice and at his own personal expense.  The unit commander further advised the applicant that he would recommend the applicant be separated from the USAR with an other than honorable conditions discharge in accordance with (IAW) paragraph 7-11.c.1 of Army Regulation 135-178 (Separation of Enlisted Personnel).

6.  On 17 April 1993, the applicant was formally notified by his company commander that separation action had been initiated to separate him from the USAR for misconduct – abuse of illegal drugs, IAW paragraph 7-11.c.1 of Army Regulation 135-178.  The applicant was advised that he had the right to consult with an appointed counsel or civilian counsel at his personal expense.  The applicant was further advised he had to acknowledge this memorandum within 30 calendar days of receipt.  On 17 April 1993, the applicant acknowledged receipt of the notification memorandum.  

7.  On 24 April 1993, the applicant consulted with military counsel and requested a personal appearance before a board of officers; however, he declined to submit statements on his behalf.


8.  On 24 May 1993, the applicant's company commander recommended that the applicant be separated due to misconduct, abuse of illegal drugs under the provisions of Army Regulation 135-178, chapter 7.  

9.  On 5 April 1994, the applicant consulted with counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon his receipt of a characterization of service upon discharge not less favorable than under honorable conditions.    

10.  On 28 October 1994, the applicant was discharged from the USAR with a general discharge under the provisions of Army Regulation 135-178.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 135-178 provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  Paragraph 7-11.c.1 of the regulation, in effect at the time, governed separation for misconduct for disqualifying patterns or acts of conduct which included abuse of illegal drugs.  Paragraph 7-3a stated that the characterization of service would normally be under other than honorable conditions; however, when warranted by the Soldier's overall record, a characterization of service of under honorable conditions could be furnished.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows he tested positive for cocaine usage during an unannounced urinalysis test.  He was notified in writing that he was being considered for discharge due to misconduct – abuse of illegal drugs, and separation action was initiated by his chain of command.

2.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects the misconduct that resulted in his discharge.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an upgrade of his 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 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)                                         AR20100022260



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110009273



2