BOARD DATE:	  16 May 2013

		DOCKET NUMBER:  AR20120018744 


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:

* his discharge is not in error or unjust
* he wants his discharge upgraded for entitlement to benefits (educational and prescription)
* the reason he was discharged had nothing to do with the Army
* he was offered help for his marijuana use and he turned it down

3.  The applicant provides a letter of residency from the Salvation Army, dated
1 October 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 on 30 October 1984 for a period of 4 years.  He completed training and he was awarded military occupational specialty 31J (teletypewriter repairer).  He attained the rank/grade of private first class (PFC)/E-3 on 1 October 1985.

3.  On 23 January 1986, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana during the period 26 November to 10 December 1985.  

4.  On 6 February 1986, a bar to reenlistment was imposed against him based on his wrongful use of a controlled substance (marijuana).

5.  On 31 March 1986, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c and d for misconduct.  The reason cited was he tested positive for tetrahydrocannabinol (THC) (marijuana).

6.  On 2 April 1986, he consulted with counsel and requested consideration of his case by an administrative separation board; however, he was not entitled to appear before a board of officers.  He acknowledged that he might encounter substantial prejudice in civilian life if he was issued a general discharge.  He also elected to submit statements in his own behalf.  He provided letters from a sergeant first class (SFC)/E-7 and a sergeant (SGT)/E-5 who attested:

* his work has always been above standard and his attitude commendable
* while his actions in the matter of controlled substances cannot be condoned, his duty performance and basic Soldier's responsibilities have always been well above standards
* he displayed motivation, interest, and sought additional responsibility in doing his primary military occupational specialty
* he received a letter of commendation
* he can accomplish any and all tasks assigned to him with outstanding results
* he has been a great asset to his unit


7.  On 7 April 1986, the applicant's commander recommended him for separation from the Army under the provisions of Army Regulation 635-200, paragraph
14-12c and d for misconduct – abuse of illegal drugs.

8.  On 10 April 1986, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

9.  On 14 April 1986, the applicant accepted NJP under the provisions of
Article 15, UCMJ for wrongfully using marijuana during the period 20 February to 6 March 1986.  His punishment included a reduction to private (PV1)/E-1.

10.  On 18 April 1986, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c and d, for misconduct – drug abuse.  He completed 1 year, 5 months, and 19 days of creditable active service.  He was furnished a General Discharge Certificate.

11.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  The regulation states that abuse of illegal drugs is serious misconduct.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

	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 requests upgrade of his discharge so that he might be granted the minimum of benefits, such as educational and prescriptions.


2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

3.  His record of service included a bar to reenlistment and two NJPs for wrongfully using marijuana.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  Although an under other than honorable conditions discharge is normally appropriate for the authority and reason for his separation, it appears the separation authority considered his overall record of service when he was discharged with a general discharge.

5.  In view of the foregoing, there is no basis for granting the applicant an honorable discharge.

6.  The applicant is also advised that the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

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)                                         AR20120018744



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ABCMR Record of Proceedings (cont)                                         AR20120018744



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