BOARD DATE:	  10 April 2012

		DOCKET NUMBER:  AR20110020199 


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 upgrade of his general discharge to an honorable discharge.

2.  He states he believes his discharge was unjust because he was given a urinalysis that was not properly handled in the proper chain of custody, and he was not given the opportunity to acknowledge that the seal of the urine collection container was legal and proper. 

3.  He provides no additional documentary evidence in support of this application.

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.  His military records show he enlisted in the Regular Army on 14 September 1977.  He completed training and was awarded the military occupational specialty of 13B (cannon crewman).

3.  He served continuously through reenlistments until his separation.  The highest rank/grade he held was staff sergeant/E-6.

4.  His records contain two counseling forms indicating he was counseled on 25 April and 8 May 1984 due to his living area in the barracks being found in a poor state.  Drawers from his desk were on top of the wall locker, the floor was filthy, and his bunk was not stockaded. 

5.  On 30 May 1984, he was given a letter of reprimand for continual failure to maintain his living area.  The letter of reprimand indicated he had been counseled on several occasions by the first sergeant regarding the standards required of all Soldiers residing in the barracks.

6.  A DA Form 2496 (Disposition Form), dated 16 July 1984, indicated laboratory analysis of a urine specimen submitted by the applicant reflected THC (marijuana) indicating use during a period ranging from approximately 6 hours to 2 weeks prior to collection of the sample.  This form states that because the urine was collected under conditions which appeared to be covered by the Limited Use Policy the lab report should not be used to support Uniform Code of Military Justice action or on the issue of characterization of service in separation procedures.

7.  A urinalysis custody report record is not available for the Board's review.

8.  On 30 July 1984, the applicant's commander notified him that he was initiating action to separate him from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations), Section III, paragraph 14-12c, due to commission of a military/civilian offense carrying a punitive discharge under the Manual for Courts-Martial.  He was advised of his rights.

9.  On 29 August 1984, he accepted nonjudicial punishment for failing to go at the time prescribed to his appointed place of duty.  He was reduced from the grade of E-6 to sergeant/E-5.

10.  On 21 September 1984, he was advised by consulting counsel of the basis for the contemplated action to separate him for the commission of a serious offense under the provisions of Chapter 14 of Army Regulation 635-200, and its effects, the rights available to him, and the effect of a waiver of his rights.  He chose not to submit a statement on his own behalf.  He waived his rights in conjunction with this consultation.

11.  On 24 September 1984, his commander recommended his separation under the provisions of Chapter 14, paragraph 14c, Army Regulation 635-200.  He was being recommended for discharge because of misconduct for abuse of illegal drugs.  His commander certified that as of that date there was no drug or alcohol abuse related information contained within the discharge packet that fell within the purview of the exemption policy of Army Regulation 600-85 (The Army Substance Abuse Program).

12.  On 12 October 1984, the separation authority directed that he be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of commission of a serious offense and the issuance of a general discharge.

13.  On 29 October 1984, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 7 years, 1 month, and 16 days of active military service.

14.  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.

15.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  The version in effect at the time, stated specific categories included a pattern of misconduct consisting solely of minor military disciplinary infractions, a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and abuse of illegal drugs.  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.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.

16.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. 

DISCUSSION AND CONCLUSIONS:

1.  His records show he was counseled and he was given a letter of reprimand for continual failure to maintain his living area in the barracks.  He tested positive for use of marijuana and he accepted nonjudicial punishment for failing to go at the time prescribed to his appointed place of duty.

2.  The Board starts its consideration with a presumption of regularity, i.e., that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  The applicant has not provided any evidence to support his contention that his urinalysis was not properly handled.

3.  The available evidence confirms his rights were protected throughout the discharge process.  Based on his commission of a serious offense, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  A general discharge would have been warranted based on his non-drug related misconduct alone.  Therefore, he is not entitled 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)                                         AR20110020199



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ABCMR Record of Proceedings (cont)                                         AR20110020199



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