IN THE CASE OF:	  

		BOARD DATE:  29 January 2013

		DOCKET NUMBER:  AR20120013381 


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 to honorable and amendment of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to delete the narrative reason for separation.

2.  The applicant states:

* his character of service and narrative reason for separation are hampering his ability to obtain meaningful employment
* during a random drug test he tested positive, a one-time offense
* he was reduced to pay grade E-1 and confined to the barracks
* he was then simply asked to clear and given his DD Form 214 without due process

3.  The applicant provides:

* DD Form 214 for the period ending 9 June 1995
* self-authored letter to the Army Review Boards Agency, undated
* letter from his spouse, dated 15 June 2012
* memorandum from an Army chaplain, dated 16 June 2012
* letter from Tracer Protection Services, Incorporated, dated 19 June 2012


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 for 4 years on 29 November 1989. 
He completed training as a chemical operations specialist.  He extended his enlistment for 10 months on 18 February 1993.  He reenlisted for 3 years on 17 May 1994.

3.  On 13 April 1995, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct – commission of a serious offense.  His commander cited his positive test for tetrahydrocannabinol (THC) as the basis for the recommendation.  The applicant acknowledged receipt of the notification.  After consulting with counsel, he elected not to submit a statement in his own behalf.

4.  The appropriate authority approved the recommendation for discharge on 24 April 1995 and directed the issuance of a general discharge.  On 9 June 1995, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He completed 5 years, 6 months, and 11 days of net active service.  He received a general discharge.

5.  The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

6.  The applicant submits a self-authored letter and letters from his employer, chaplain, and wife attesting to his good character and post-service conduct.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  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.

	b.  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 applicant's contentions have been noted and his supporting evidence has been considered.

2.  His records show he was notified he was being discharged for misconduct – commission of a serious offense – after he tested positive for THC.  He acknowledged receipt of the notification.  According to the applicable regulation, a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, he was issued a general discharge based on his overall record of service.

3.  The applicant's claims concerning his post-service conduct and his desire to obtain employment are noted.  However, neither is a proper basis for granting the applicant's requests to upgrade his discharge or change to his narrative reason for his discharge.

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


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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20120013381



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