IN THE CASE OF:	  

		BOARD DATE:  31 July 2012

		DOCKET NUMBER:  AR20120000938 


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 U.S. Army Reserve (USAR) general discharge. 

2.  The applicant states:

   a.  It became apparent at his 2010 board hearing that his 201 File (Personnel Qualification Record) was missing information concerning his discharge except for a non-commissioned officer evaluation report (NCOER).  He was able to obtain the missing files which reflected information being withheld and the board decision being made without crucial information being revealed. 
   
   b.  With the recommendation rendered by the president of his board hearing, he is exhausting his last chance to appeal his discharge, a discharge that has been based on his being characterized as a drug abuser.  He is requesting a final appeal because his 201 File is missing valuable information.  
   
   c.  Due to the positive test the 80th Division identified him as an illegal drug abuser which he had countered with the fact that he was exposed to second hand smoke for an extended period of time.  Thus, from November to December, he believed he was exposed to no less than 80 joints, possibly more, being smoked.  Being exposed does not make him an illegal drug abuser because there was no intent to use, process, or abuse illegal drugs.   
   
   d.  Both his company and battalion commanders wrote positive comments, even his company commander willingly offered support in his favor, but at the same time was not willing to go against the 80th Division policy.

	e.  In a civilian court he believes that he would not have been given such a harsh penalty as given by his original board.  There was toleration at the lower ranks to give a Soldier a second chance, but as an NCO the positive test translated to abuser and nothing else.  He realizes all the boards that he has been subjected to do not agree with the behavior, but he disagrees with the penalty given as do many of his peers.

3.  The applicant provides:

* DA Form 1059 (Service School Evaluation Report)
* 1994 through 1998 NCOERs
* DA Form 638 (Recommendation for Award)
* DA Form 4856 (General Counseling Form)
* Disciplinary action memorandum
* battalion commander statement
* marijuana cigarette information
* Internal Chain of Custody form
* email correspondence pertaining to his 2010 hearing
* Non D.O.T. Custody and Control Form
* six character reference letters to the Army Discharge Review Board (ADRB)

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the USAR, in pay grade 
E-1, on 26 March 1977, for 6 years.  He enlisted in the Regular Army on 13 September 1977 for 3 years.  He completed training and was awarded military occupational specialty 72E (Telecommunications Center Operator).

2.  He was honorably released from active duty, in pay grade E-4, on 12 September 1980, for completion of required service, and was transferred to the USAR Control Group (Reinforcement).  He was credited with completing 3 years of active service and no time lost.

3.  He was honorably discharged from the USAR for the purpose of immediate reenlistment on 25 March 1983.  He reenlisted in the USAR on 26 March 1983 and continued to serve in the USAR through several reenlistments.

4.  On 14 February 1999, he received counseling on testing positive for marijuana and his rights.

5.  On 1 March 1999, the applicant's unit commander advised the applicant that he was initiating his separation pursuant to the provisions of Army Regulation 135-178 (Army National Guard (ARNG) and Army Reserve - Enlisted Administrative Separations), chapter 7-11, for abuse of illegal drugs.  The unit commander recommended the applicant receive an other than honorable conditions discharge.

6.  On 9 March 1999, the applicant acknowledged the proposed separation actions.  

7.  On 27 April 1999, the applicant's battalion commander concurred with the unit commander's recommendation.

8.  It appears the applicant requested to have his case heard by a board of officers, as a board convened on 10 July 1999.  The board found the applicant did commit an act of misconduct under Army Regulation 135-178 by use of marijuana and he was not desirable for further service.  The board recommended the applicant be discharged from the USAR with a general discharge.

9.  Accordingly, orders were issued on 19 September 1999 discharging him from the USAR, in pay grade E-7, under the provisions of Army Regulation 
135-178, with a general discharge.

10.  On 22 October 2009 and 8 November 2010, the ADRB denied his requests for an upgrade of his discharge.

11.  Army Regulation 135-178, in effect at the time, established the policies and procedures governing the separation of enlisted Soldiers from the ARNG and USAR.  Chapter 7, paragraph 7-11c(1) prescribed the procedures for separation for abuse of illegal drugs.  Paragraph 7-11c(1) stated that for first-time drug offenses Soldiers in the rank of sergeant and above and with 3 or more years of total military service (Regular and Reserve) would be processed for discharge on discovery of a drug offense.  The immediate and intermediate commanders would recommend discharge or retention and the characterization of service.  

12.  Army Regulation 135-178 stated 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 had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

13.  Army Regulation 135-178 stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged from the USAR on 19 September 1999, under the provisions of with Army Regulation 135-178, for abuse of illegal drugs.  In accordance with regulatory guidance, Soldiers in the rank of sergeant and above would be processed for discharge upon discovery of a drug offense.  The applicant received counseling and acknowledged the proposed separation.  

2.  He provided neither sufficient evidence nor a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  He also has not provided evidence sufficient to mitigate the characterization of his USAR discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.

3.  In the absence of evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

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)                                         AR20120000938





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ABCMR Record of Proceedings (cont)                                         AR20120000938



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