BOARD DATE:  4 January 2013

		DOCKET NUMBER:  AR20120011404 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states that since his discharge his life progressively got worse through drug use and finally he lost everything he owned and loved.  He had reached rock bottom.  After two treatment centers he has turned his life around.  He attends support group meetings regularly and has been clean for over a year.  He requests upgrade of his discharge to wipe away his tainted past and start anew. 

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 5 September 1989.  He completed training and was awarded military occupational specialty 31F (Mobile Subscriber Equipment (MSE) Network Switching Operator).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

   a.  item 5 (Oversea Service) he served in Germany from 13 May 1990 through 12 May 1992;

	b.  item 9 (Awards, Decorations and Campaigns) the Army Service Ribbon, Army Commendation Medal, National Defense Service Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar; and

   c.  item 18 (Appointments and Reductions) the highest grade he held was private/E-2.

4.  The available records show the applicant:

	a.  accepted nonjudicial punishment (NJP) under the provisions of Article 
15, Uniform Code of Military Justice for the wrongful use of marijuana between
11 August and 10 September 1991.

	b.  was convicted, in accordance with his plea, by a summary court-martial of the wrongful use of marijuana between February and March 1992.  

5.  On 15 June 1992, the applicant's commander notified him that she was initiating action to discharge him under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12c.  The reason for his proposed action was his use of marijuana.  The applicant was advised of his rights and of the separation procedures involved.

6.  The applicant consulted with counsel.  He acknowledged his rights and elected to not submit a statement in his own behalf.  

7.  The appropriate authority approved the recommendation and directed the issuance of a General Discharge Certificate.

8.  Accordingly, he was discharged on 24 November 1992, with a general discharge.  He had completed 3 years, 1 month, and 27 days of total active service.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel:

	a.  Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  The regulation in effect at the time stated individuals in pay grades E-5 and above could 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 have been processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.

   b.  Chapter 3, 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's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct based on commission of a serious offense was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the reasons therefore were appropriate and equitable.

2.  The evidence also shows that the applicant accepted NJP and was convicted by summary court-martial for the wrongful use of marijuana.  Processing for separation was mandatory.  

3.  The applicant's post-service efforts to straighten out his life are noted.  However, they do not mitigate the misconduct that resulted in his general discharge. 

4.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20120011404



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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