BOARD DATE:	  15 May 2012

		DOCKET NUMBER:  AR20110021958 


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 (UOTHC).

2.  The applicant states he was going through a very difficult time due to the death of his cousin.  It was during this time that he used marijuana, but was in the process of quitting when he tested positive.  Because he had still been smoking marijuana when he tested positive the first time, his tetrahydro-cannabinol levels were even higher when he tested positive the second time so it appeared that he was still smoking when, in truth, he had stopped.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 15 May 1997, completed training, and was awarded the military occupational specialty 91B (Medical Specialist).  The highest rank/pay grade he attained was specialist/E-4.

3.  The applicant tested positive for marijuana use on two occasions between 9 March 1999 and 7 June 1999.

4.  He received nonjudicial punishment under Article 15, Uniform Code of Military Justice, on two occasions for use of marijuana.

5.  On 11 August 1999, his unit commander initiated separation action for misconduct, use of marijuana, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14.  The unit commander recommended his discharge UOTHC.

6.  After consulting with counsel and being advised of his rights and options, the applicant acknowledged the proposed separation action and waived his right to submit a personal statement.  He acknowledged that he could expect to experience substantial prejudice in civilian life if he received a discharge UOTHC. 
He requested a review of his case by a board of officers.

7.  The applicant was notified to appear before an administrative separation board and advised of his rights.  After being informed of the specifics of the board, he submitted an unconditional waiver to the administrative separation board.

8.  The unit commander subsequently recommended his separation from the service and a waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed separation action and recommended approval of a discharge UOTHC.

9.  The separation authority waived further rehabilitative efforts and directed the applicant's discharge UOTHC.

10.  The applicant was discharged UOTHC in the rank/pay grade of private/E-1 on 24 September 1999.  He completed 2 years, 4 months, and 24 days of creditable service.

11.  The record contains no indication of any award of any personal decoration or letters of appreciation or commendation.
12.  On 31 October 2007, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.

13.  Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations.

	a.  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.

	b.  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.

	c.  Chapter 14 sets forth the basic authority for the separation of enlisted personnel 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.  The issuance of a discharge UOTHC is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.  The character of service is commensurate with the applicant's overall record of service.

2.  The record does not contain and the applicant has not provided any documentation of service or post-service conduct so meritorious as to outweigh his misconduct.

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)                                         AR20110021958



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ABCMR Record of Proceedings (cont)                                         AR20110021958



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