IN THE CASE OF: 

		BOARD DATE:	    8 January 2013

		DOCKET NUMBER:  AR20120011660 


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 discharge.  

2.  The applicant states he should not have been discharged for failing one drug test because he was not an E-5.  He states he failed one drug test in five years and should not have been discharged for this isolated incident.  

3.  The applicant provides no documentary evidence in support of his application.  

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’s record shows he enlisted in the Regular Army on 27 July 1982.  He was trained in and awarded military occupational specialty (MOS) 55D (Ammunition Specialist) and specialist four (SP4)/E-4 is the highest grade he held on active duty.  His record documents no acts of valor or significant achievement.  

3.  The record shows the applicant earned the Army Good Conduct Medal (AGCM), Army Service Ribbon (ASR), Overseas Service Ribbon (OSR), Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Driver and Mechanic Badge with “W” (Driver) Bar.  

4.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separation occasions.  On 27 July 1987, he accepted NJP for wrongfully using cocaine and wrongful use of marijuana; and on 7 August 1987, he accepted NJP for disobeying a lawful order.  It also includes formal counseling for missing formation, assaulting his wife, public intoxication, and indebtedness between 9 April and 28 July 1987. 

5.  On 9 September 1987, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 14, by reason of misconduct – abuse of illegal drugs and recommended that the applicant be issued a general, under honorable conditions discharge (GD).  The unit commander specifically cited the applicant's positive urinalysis as the basis for taking the action.  

6.  On 9 September 1987, the applicant consulted with legal counsel and he was advised of the basis for the separation action, its effects, and of the rights available to him.  Subsequent to this counseling, the applicant completed an election of rights in which he elected not to submit a statement in his own behalf. 

7.  On 16 September 1987, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, chapter 14, for misconduct – abuse of illegal drugs, and directed the applicant receive a general discharge.  On 1 October 1987, the applicant was discharged accordingly.  The DD Form 214 the applicant was issued at the time shows he held the rank/grade of private first class/E-3 on the date of discharge and that he completed a total of 5 years, 2 months, and 5 days of creditable active service.  

8.  There is no evidence indicating the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
9.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

10.  Paragraph 14-3 of the separation regulation contains guidance on characterization of service for members separated under chapter 14.  It states that an under other than honorable conditions discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such is merited by the Soldier's overall record.  It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his general discharge to an honorable discharge because he should not have been discharged based on one isolated incident has been carefully considered.  However, there is insufficient evidence to support his claim.

2.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

3.  By regulation, an under other than honorable conditions discharge is normally appropriate for a member separated by reason of misconduct, commission of a serious offense, abuse of illegal drugs.  Clearly, the applicant’s wrongful use of illegal drugs, including cocaine and marijuana, as evidenced by the NJP action he accepted for these offenses and his disciplinary history diminished his overall record of service below that meriting a fully honorable discharge. 

4.  In view of the foregoing and absent evidence of error or injustice in the discharge process, there is an insufficient evidentiary 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)                                         AR20120011660



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ABCMR Record of Proceedings (cont)                                         AR20120011660



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