IN THE CASE OF:	  

		BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110021467 


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 he served all of his time.  His administrative discharge review board was made up of officers in his unit and he didn't receive a fair hearing.  

3.  The applicant provides no additional evidence in support of his 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.  He enlisted in the Regular Army on 7 July 1987 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).  He was promoted to specialist/pay grade E-4 on 1 October 1988.  He immediately reenlisted on 
28 February 1990 for a period of 4 years.

3.  After completing a tour of duty in Germany, he was assigned to the 
3rd Battalion, 8th Field Artillery at Fort Bragg, NC on 15 October 1990.  He was deployed to Southwest Asia from 12 November 1990 to 16 March 1991.

4.  On 9 September 1993, he received a general officer memorandum of reprimand (GOMOR) for testing positive on 14 August 1993 for THC (Tetrahydrocannabinol) during a urinalysis test.

	a.  He acknowledged receipt of the GOMOR and elected not to make a statement.

	b.  The imposing authority directed the GOMOR be filed on the applicant's performance fiche of his official military personnel file (OMPF).

5.  On 20 September 1993, he accepted nonjudicial punishment (NJP) for wrongfully using marijuana between 14 July 1993 and 14 August 1993.

6.  On 19 October 1993, his commander notified him that action was being initiated to separate him under the provisions of Section III, chapter 14 of Army Regulation 635-200 (Personnel Separations), for commission of a serious offense.  The reason for the proposed action was the applicant's having tested positive for wrongful use of marijuana between 15 July and 14 August 1993.  The commander recommended that he receive a general discharge.  The commander advised the applicant of his right to:

* consult with counsel
* obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action
* request a hearing before an administrative board
* submit statements in his own behalf
* request appointment of military counsel for representation or representation of military counsel of his choice if reasonably available
* retain civilian counsel at no expense to the government
* 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
* submit a conditional waiver of his right to have his case heard before an administrative separation board

7.  On 17 November 1993, after being advised by his consulting counsel of the basis for the contemplated action to separate him, he submitted a statement acknowledging he had been advised by his consulting counsel of the basis for the contemplated separation action for drug abuse.  

	a.  He requested:

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

	b.  He understood that his willful failure to appear before the board by absenting himself without leave would constitute a waiver of his rights to a personal appearance before the board.

	c.  He understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further understood that, as the result of the issuance of a discharge under other than honorable condition, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

8.  His commander recommended that he be eliminated from the service before the expiration of his term of service due to misconduct, abuse of illegal drugs, due to him having tested positive for wrongful use of marijuana between 15 July and 14 August 1993.

9.  On 12 January 1994, he voluntarily waived consideration of his case by an administrative separation board contingent upon his receiving an honorable discharge.  On 25 January 1994, his commander disapproved his request for a conditional waiver.

10.  On 26 January 1994, an administrative discharge board was convened.  The members of the board consisted of a major, a captain, and a first sergeant who were assigned to Headquarters and Headquarters Battery, 5th Battalion, 8th Field Artillery.  The applicant was asked if he desired to challenge any member of the board for cause.  After his counsel questioned each member, the applicant indicated that he did not desire to challenge any member of the board.

11.  He submitted two statements, one from a sergeant and one from a staff sergeant, to the board.

	a.  The sergeant stated it was his opinion the applicant had served his country and his unit very honorably in the past.  Although he made some mistakes along the way, the applicant had proven he had been very valuable to his unit and the Army.

	b.  The staff sergeant stated the applicant's devotion to duty resulted in the section's outstanding performance during many field exercises, section certifications, and air/land missions.  He felt the applicant should be given an honorable discharge due to his contributions to his section.

12.  On 16 February 1994, the board found the applicant had committed a serious offense.  The board also found he was undesirable for further retention in the military service because of the commission of a serious offense.

13.  The board recommended he be discharged from the service because of the commission of a serious offense and issued a General Discharge Certificate.

14.  On 25 February 1994, he was discharged under the provisions of 
paragraph 14-12c of Army Regulation 635-200.  He completed a total of 6 years, 7 months, and 19 days of active service that was characterized as under honorable conditions.

15.  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.

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

	a.  Paragraph 2-7 stated a board convened to determine whether a Soldier would be separated under the Administrative Board Procedure would consist 
of at least three experienced commissioned, warrant, or noncommissioned officers.  Enlisted Soldiers appointed to the board will be in grade E-7 or above, and senior to the respondent.  At least one member of the board will be serving in the grade of major or higher, and a majority will be commissioned or warrant officers.  The senior member will be president of the board.  Care was exercised to ensure that the board was composed of experienced, unbiased officers.  The officers were fully aware of applicable regulations and policies pertaining to cases for which the board was convened.  The Soldier could challenge any voting member of the board for cause only.

	b.  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.

	c.  Paragraph 14-12c(2) of chapter 14 stated 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.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  He contends he didn't receive a fair hearing by the administrative discharge board.  However, the board was duly constituted under the provisions of the regulation in effect at the time.  When he was asked if he desired to challenge any members of the board, he replied that he did not.  He did not provide any substantive evidence in support of his contention.

2.  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 his commander and the administrative discharge board considered his prior service in that he was recommended for a general discharge

3.  He 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.

4.  Testing positive for use of marijuana does not meet the standards of acceptable conduct.   

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)                                         AR20110021467





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ABCMR Record of Proceedings (cont)                                         AR20110021467



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