BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120011047 


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 the reason for his discharge be changed.

2.  The applicant states he has a solid work record, no violent history, and no history of drug or alcohol abuse since his discharge.  He is a member of two unions.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 11 March 1993.

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 29 August 1989 for 3 years.  He reenlisted on 28 May 1992 for 2 years.  He was assigned military occupational specialty 16P (Chaparral Crewmember).

3.  On 7 December 1992, he accepted nonjudicial punishment for wrongfully using marijuana on or about 19 October 1992.  His punishment included reduction to private first class/pay grade E-3.  He appealed his punishment on 
10 December 1992 and on 22 December 1992 his appeal was denied.

4.  On 21 January 1993, he received a mental status evaluation.  The examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

5.  On 17 February 1993, his commander notified him that action was being initiated to separate him for wrongful use of marijuana under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c.  The commander recommended 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
* submit statements in his own behalf
* 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

6.  On 19 February 1993, after being advised by his consulting counsel of the basis for the contemplated action to separate him, he requested consulting counsel and waived the remainder of his rights.

	a.  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 conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

	b.  He understood he could withdraw his waiver of any of his rights at any time prior to the date the discharge authority directed or approved his discharge.

	c.  He understood he would be ineligible for enlistment in the U.S. Army  for a period of 2 years after discharge.

7. On 19 February 1993, his commander recommended that he be eliminated from the service before the expiration of his term of service.  His specific reason was all Soldiers with more than 3 years of active service were to be separated for first time drug offense.  

8.  On 23 February 1993, the appropriate authority approved the recommendation for discharge and directed his service be characterized as under honorable conditions.

9.  On 11 March 1993, he was discharged under the provisions of 
paragraph 14-12c of Army Regulation 635-200.  The reason shown on his 
DD Form 214 is "Misconduct/Abuse of Illegal Drugs."  He completed a total of 
3 years, 6 months, and 13 days of active service that was characterized as under honorable conditions.

10.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for a change of reason for his discharge within the ADRB's 15-year statute of limitations.

11.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 14-12c(2) stated that Soldiers in the rank of sergeant and above, and all Soldiers with 3 years or more of total military service, Active and Reserve, would be processed for separation upon discovery of a drug offense.  The separation reason in all separations authorized by this paragraph was "misconduct - abuse of illegal drugs."  The issuance of a discharge under other than honorable conditions was normally considered appropriate for a Soldier discharged under chapter 14.  

DISCUSSION AND CONCLUSIONS:

1.  He was properly and equitably discharged in accordance with regulations in effect at the time.  The records contain no indication of procedural or other errors that would have jeopardized his rights.  The reason shown on his DD Form 214 for his discharge was directed by the regulation in effect at the time for personnel discharged under Army Regulation 635-200, paragraph 14-12c.  Therefore, the reason shown DD Form 214 is correct.

2.  His statement concerning his post-service conduct is noted.  However, his post-service conduct is insufficient to justify changing a properly-issued discharge that was based on his service over 19 years ago.
3.  In view of the above, there is an insufficient basis to change the reason for his 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)                                         AR20120011047



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ABCMR Record of Proceedings (cont)                                         AR20120011047



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