IN THE CASE OF:	

		BOARD DATE:	    1 November 2012

		DOCKET NUMBER:  AR20120005617 


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 a fully honorable discharge.

2.  The applicant states drug use was believed to be the reason for discharge and he thinks the drug test was mishandled or switched.

3.  The applicant provides no additional evidence.

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.  Having prior active service, the applicant enlisted in the U.S. Army Reserve under the Delayed Entry Program (DEP) for 6 years in pay grade E-4 on 2 February 1983.

3.  He was discharged from the DEP on 2 March 1983 and enlisted in the Regular Army for 3 years on 3 March 1983.  He held military occupational specialties (MOS) 26Q (Tactical Satellite/Microwave System Operator) and S76N (Utility Helicopter Repairer).

4.  He previously served in Hawaii from 11 March 1980 to 9 July 1981 and during his current enlistment, he served in Germany from 18 July 1983 to 29 May 1986.  He was awarded or authorized the:

* Expert Marksmanship Qualification Badge with Rifle Bar
* Marksman Marksmanship Qualification Badge with Grenade Bar
* Army Good Conduct Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Expert Marksmanship Qualification Badge with Machine Gun Bar
* Aircraft Crewman Badge

5.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on:

* 10 April 1984, for wrongfully using abusive gestures – "giving the finger" – to a major
* 10 December 1985, for wrongfully using marijuana
* 19 April 1986, for failing to go at the time prescribed to his appointed place of duty

6.  On 6 March 1986, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12d of Army Regulation 635-200 (Personnel Separations) for misconduct – abuse of illegal drugs.  He recommended a general discharge.

7.  On 7 March 1986, he acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He elected consideration of his case by a separation board and a personal appearance before a separation board.  He also elected not to submit statements on his own behalf.  He indicated he:

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

8.  The applicant's immediate commander initiated separation action against him in accordance with paragraph 14-12d of Army Regulation 635-200 due to misconduct – abuse of illegal drugs.  The intermediate commander recommended approval of the discharge.

9.  On 18 April 1986, the applicant withdrew his request for a board of officers to hear his case.

10.  On 23 April 1986 consistent with the chain of command's recommendations, the separation authority approved the administrative discharge and ordered the applicant discharged under the provisions of paragraph 14-12d of Army Regulation 635-200 by reason of misconduct and directed issuance of a General Discharge Certificate.

11.  The applicant was discharged on 30  May 1986.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged by reason of misconduct for abuse of illegal drugs under the provisions of chapter 14, Army Regulation 635-200, with his service characterized as under honorable conditions.  This form further confirms he completed 3 years, 2 months, and 28 days of creditable active military service during this period and he had 2 years, 11 months, and 28 days of prior active service.

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

14.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed a serious offense in that he wrongfully used illegal drugs.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was accordingly discharged under the provisions of Army Regulation 635-200, chapter 14, due to his misconduct.

2.  The applicant has provided no proof to support his belief his drug test was mishandled or switched.  The record shows he accepted NJP for the offense.  It also shows he later admitted to marijuana use.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Considering that the issuance of a discharge under other than honorable conditions is normally appropriate in such cases, his discharge under honorable conditions was highly favorable given all the facts of the case.

4.  His discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, he is not entitled to the requested relief.

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)                                         AR20120005617



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ABCMR Record of Proceedings (cont)                                         AR20120005617



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