IN THE CASE OF:	  

		BOARD DATE:  9 July 2013

		DOCKET NUMBER:  AR20120021829 


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.

2.  The applicant states he doesn't think this single incident [of drug use] was reason enough to change the nature of his service.  He feels that given the society at the time and conditions in society that this type of incident was not reason enough to justify such a discharge.  Additionally, many service members during this era were unjustly released due to poor screening techniques as well as not considering their true character of service.

3.  He further states that while home on leave he allowed himself to think he could blend back in with his friends that he had left behind.  Of course at the time the drug culture was prevalent and he allowed himself to think that he could be one of them once again if not but for a short time.  In that one single incident he tried marijuana and as a result tested positive upon his return to his unit.  That was the only time he had ever tried any form of illegal recreational drugs in his life.  He now asks the Army to correct an injustice and correct his record to show an honorable characterization of service, as all of his service was honorable in nature, as can be seen by his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He was not a "screw-up" and performed his service honorably and has carried regret all of his life over this one incident.  He is asking for this to be corrected so that he can show his family that his service was honorable in nature before he dies and to be able to rid himself of this burden.  He does not feel that this one mistake of youth should color an otherwise stellar period of service.  He is not asking for this change in order to secure government benefits but rather to clear his record of an incident he does not feel is just.
4.  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.  On 2 February 1982, he enlisted in the Regular Army for a period of 4 years.  The highest rank he held was sergeant/pay grade E-5.

3.  A DA Form 5180-R (Urinalysis Custody and Report Record), dated 18 September 1985, shows the applicant tested positive for THC (tetrahydrocannabidinol), the active chemical in marijuana.
  
4.  On 18 October 1985, the applicant's commander notified him that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, Section III, for "misconduct – abuse of illegal drugs."  He indicated if his request for the applicant's discharge was approved the applicant would be given an under other than honorable conditions discharge.  The applicant was advised of his rights.  The applicant acknowledged receipt of the notification. 

5.  On 30 October 1985, the applicant was advised by consulting counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200, chapter 14, and its effects, the rights available to him, and the effects of a waiver of his rights.  He indicated that he was choosing to submit a statement on his own behalf.  However, any statement he may have made is not available for the Board's review.  He waived his rights in conjunction with this consultation.

6.  A DA Form 3822-R (Report of Mental Evaluation), dated 13 November 1985, shows the applicant was seen for a mental status evaluation as part of an examination for administrative discharge from the Army.  The report indicates no thought disorder was noted and he was psychiatrically cleared for any administrative action deemed appropriate by the command.

7.  His battalion commander recommended disapproval of the discharge request.  He stated the applicant had served honorably and well with the exception of this single transgression.  The applicant was of good value to the Army.

8.  On 26 November 1985, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12 and that he be given a general discharge.

9.  On 10 December 1985, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12d, misconduct-abuse of illegal drugs.  He was given a general discharge.  The DD Form 214 he was issued shows he completed 3 years, 10 months, and 9 days of active military service.

10.  His records show his awards include the Combat Infantryman Badge, Expert Infantryman Badge, and Ranger Tab.  He completed the Jungle Warfare Course, Sniper-Countersniper Course, Ranger Course, and Jumpmaster Course during his military service.  His record shows no other incidents of misconduct.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, in effect at the time, provided for separation for various types of misconduct, which included drug abuse, and provided that individuals identified as drug abusers could be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above were required to be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could also be processed after a first drug offense and must have been processed for separation after a second offense.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.

13.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions are noted.  His records show he was discharged for the commission of the serious offense of abuse of illegal drugs.

2.  The available evidence shows his rights were protected throughout the discharge process.  Based on his commission of a serious offense, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. 

3.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, it appears the separation authority directed he be given a general discharge based on the applicant's overall record.

4.  In view of the above, there is an insufficient basis upon which to upgrade his discharge to 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)                                         AR20120021829



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ABCMR Record of Proceedings (cont)                                         AR20120021829



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