IN THE CASE OF:	  

		BOARD DATE:	    20 December 2012

		DOCKET NUMBER:  AR20120010784 


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 (GD) to an honorable discharge (HD) and a change of the reason for his discharge.

2.  He states:

* he was discharged for "misconduct drug abuse because a urinalysis came up positive"
* he believes the test was tampered with
* he did not do drugs
* he was told his discharge would be automatically changed to honorable in 6 months
* he did not admit guilt at the time of his discharge because he was not guilty

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Criminal Record Search
* character references
* self-authored statement

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 14 July 1978.  After completing initial entry training, he was awarded military occupational specialty (MOS) 71L (Administrative Specialist).  He was later trained in and awarded MOS 91B (Medical Specialist – later converted to MOS 91A).  He was promoted to pay grade E-5 on 2 August 1982.  His record shows he served in that grade as a sergeant and as a specialist five.

3.  On 15 April 1985, he was counseled regarding positive urinalysis results.  He stated while at the Primary Leadership Development Course (PLDC) from 4 January to 1 February 1985 he was taking German diet pills.  He stated he did not smoke marijuana.  He was informed that positive urinalysis results for E-5's and above would result in automatic initiation of separation proceedings under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14.  He indicated he concurred with the counseling.

4.  On 31 May 1985, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for:

* sometime prior to submission of a urine sample on 20 February 1985, knowingly and wrongfully using marijuana 
* on or about 21 April 1985, unlawfully striking a woman in the face with his open right hand and lower left forearm
* on or about 21 April 1985, wrongfully communicating to the same woman a threat to kill her

5.  He did not appeal the punishment.

6.  On 25 June 1985, his commander notified him he was initiating action to eliminate him from the U.S. Army under the provisions of Army Regulation 
635-200, paragraph 14-12c, and informed him of his rights.

7.  On 27 June 1985, he consulted with counsel who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights.

8.  After consulting with counsel, he requested a personal appearance and consideration by a board of officers, he elected to submit statements in his own behalf, and he requested representation by consulting counsel.  He acknowledged he could expect to encounter substantial prejudice in civilian life if a GD were issued to him.  He also acknowledged he understood there was no automatic upgrading of this type of discharge.

9.  On 26 September, he was notified to appear before a board of officers convening on 16 October 1985 to determine whether he should be discharged because of misconduct.  The record shows he appeared as directed.

10.  The board proceedings show he testified in his own behalf.  In his testimony, he stated he smoked hashish once about 2 weeks after he left PLDC.  He stated he used it because he was under a lot of pressure and stress and he regretted using it.

11.  The board found he had abused illegal drugs, he was undesirable for further retention in military service, and his rehabilitation was not deemed possible.  The board recommended his discharge with a GD Certificate.

12.  On 24 October 1985, the separation authority approved the board's findings and recommendation for his discharge with a GD Certificate.

13.  On 25 November 1985, he was discharged as directed by the separation authority after completing 7 years, 4 months, and 12 days of net active service.  His DD Form 214 shows in:

* item 24 (Character of Service) – "UNDER HONORABLE CONDITIONS"
* item 25 (Separation Authority) – "AR 635-200 CHAP 14-12C"
* item 26 (Separation Code) – "JKK"
* item 28 (Narrative Reason for Separation) – "MISCONDUCT-DRUG ABUSE"

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.  He provides character references from a pastor and a human resources (HR) manager at his place of employment.

	a.  The pastor states he has known the applicant for a number of years.  He states the applicant:

* is a dedicated and faithful member of the church who participates in many church programs and can be depended upon to provide a helping hand
* was a diligent employee for the South Carolina Department of Corrections for 12 years and took pride in his position
* is a law-abiding citizen

	b.  The HR manager states the applicant has been an outstanding employee since 23 July 2008.  He is prompt, considerate of others, and always helpful.

16.  He provides a self-authored statement in which he states, in part, he did not abuse drugs while he was in the military.  He states, in effect, he believes his urine sample was mishandled.  He states:

* his personnel record will show he was a good Soldier
* in his 7 years in the military, he had one Article 15 for being late for a formation which was removed from his records after 30 days
* he is trying to gain employment with the North Carolina Department of Corrections
* the notation of drug abuse on his DD Form 214 makes it appear that he abused drugs while he was in the military, which is not true

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 provides for separation for various types of misconduct, which include 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 under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a provides that an HD 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.

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the narrative reasons for separation to be entered in item 28 of DD Form 214.  The version in effect at the time of the applicant's discharge stated the narrative reason "misconduct–drug abuse" was used for separations under the provisions of Army Regulation 635-200, paragraph 14-12c.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his discharge or a change to the reason for his discharge.

2.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.

3.  The record contradicts his contentions that he did not use drugs and did not admit guilt.  In fact, he admitted before a board of officers that he had used hashish prior to providing a positive urine sample.

4.  The record supports the findings and recommendations of the board of officers as approved by the separation authority, and the record shows his rights were fully protected throughout the separation process.

5.  Although discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Army Regulation 635-200, chapter 14, the board of officers recommended the issuance of a GD which was approved by the separation authority.  The available records support this decision, and there is no evidence of error, inequity, or injustice in the characterization of his service.

6.  His DD Form 214 properly shows the narrative reason for separation applicable to the authority for his discharge.  In the absence of evidence showing an error in this entry, there is no basis for changing it.

7.  In view of the foregoing, there is no basis for granting 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)                                         AR20120010784



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ABCMR Record of Proceedings (cont)                                         AR20120010784



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