BOARD DATE:	  17 January 2013

		DOCKET NUMBER:  AR20120012349 


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 that his general discharge be upgraded to an honorable discharge.  

2.  The applicant makes no additional statement.

3.  The applicant provides no additional documentation.

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 24 June 1981.  He successfully completed training and was awarded military occupational specialty 94B (Food Service Specialist).  On 14 June 1984, he was honorably discharged for immediate reenlistment on 15 June 1984. 
3.  Evidence of record shows the applicant tested positive for marijuana on 
19 November 1985 and 15 January 1986, while stationed at Fort Knox, KY.

4.  A memorandum for the applicant's commander, dated 6 March 1986, Subject: Results of Alcohol and Drug Abuse and Control Program (ADAPCP) Intake Evaluation, shows the applicant was enrolled in the Track I Awareness Education Program.  He was scheduled to attend classes on 31 March and 1 April 1986.   

5.  A memorandum for the applicant's commander, dated 1 April 1986, shows the applicant failed to attend his scheduled classes.

6.  On 1 April 1986, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana.  He appealed and his reduction to the pay grade of E-3 was suspended until 30 October 1986.

7.  On 11 April 1986, the applicant's commander initiated elimination action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-12, for misconduct– drug abuse.  The reason cited by his commander was that the applicant was identified as an illegal drug user on two separate occasions.

8.  The applicant was advised by consulting counsel of the basis for the contemplated separation action and of the impact of the discharge action.  He signed a statement indicating he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12.  He requested counsel and wished to have his case heard by an administrative separation board.  The applicant did not provide a statement in his own behalf.  He did not have the 6 years time-in-service required for an administrative separation board.

9.  On 13 May 1986, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 14-12c(2), by reason of "MISCONDUCT – DRUG ABUSE" with the issuance of a General Discharge Certificate.  On 6 June 1986, he was discharged accordingly in the rank of private first class.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed a total of 4 years, 11 months, and 13 days of creditable active service with no time lost.

10.  On 26 August 1987, the Army Discharge Review Board (ADRB) reviewed and denied the applicant's request for an upgrade.  The ADRB determined that the applicant's reason for discharge was proper and equitable and his discharge was properly characterized.
11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14-12c(2) establishes policy and prescribes procedures for separating members for misconduct-drug abuse.  Action will be taken to separate a member for misconduct when it is clearly established that 
rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

12.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered and it was determined there is insufficient evidence to support his request.

2.  His administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would jeopardize his rights.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's military service records show he tested positive for marijuana on two separate occasions, he received one Article 15, and he failed to attend his ADAPCP scheduled appointments for the Track I Awareness Education Program.  Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable 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)                                         AR20120012349





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120012349



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1