BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20120022846 


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 under other than honorable conditions (UOTHC) discharge.

2.  The applicant states, while there is no error or injustice in his record, he has not been in any trouble since his discharge from the Army and he desires an upgrade of his UOTHC discharge.

3.  The applicant provides:

* DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States)
* Character Reference – "The Heart and Soul Club"
* Certificate of Integrity
* Certificate of Accountability
* State Security Card
* National Archives and Records Administration (NA) Form 13054 - (Return of Inquiry)
* NA Form 13075 (Questionnaire About Military Service)

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 military records show he enlisted in the Regular Army on 14 November 1983, in the rank of private first class/E-3.

3.  On 20 February 1985, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military for his wrongful use of marijuana.

4.  On 3 April 1985, the unit commander notified the applicant that he was initiating action to separate him under the provisions Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for serious misconduct – abuse of illegal drugs.  The commander stated the following as the basis for the separation action:

	a.  chain of custody, dated 7 January 1985, which shows he tested positive for marijuana; and 

	b.  a letter, dated 10 August 1984, showing his positive urinalysis.

5.  On 10 April 1985, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects.  The applicant completed his election of rights indicating his options to request:

* consideration of his case by a board of officers
* personnel appearance before an administrative separation board
* consulting counsel
* to submit a statement in his own behalf

6.  On 29 May 1985, after having carefully considered the evidence, the investigating board of officers found the applicant guilty of the use of marijuana on two counts and recommended his discharge from the Army with an UOTHC discharge.  

7.  On 15 August 1985, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, chapter 14, with the issuance of a UOTHC discharge.
8.  On 4 September 1985, the applicant was discharged from the Army.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions by reason of "misconduct – serious offense" under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of "misconduct, drug abuse."  He completed 1 year, 9 months, and 21 days of creditable active duty service.

9.  The applicant submitted a DD Form 293 with his application to this Board.  However, he exceeded the Army Discharge Review Board's 15-year statute of limitations to appeal for a discharge upgrade.

10.  The applicant provides a character reference, integrity, and accountability certificate which indicates he is respectful, friendly, professional, willing to help others, and responsible.

11.  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 personnel for misconduct, including the commission of a serious offense.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An honorable discharge (HD) or a general discharge (GD) may be awarded by the separation authority if warranted by the member's overall record of service; however, a discharge UOTHC is normally considered appropriate for members separated under these provisions.

	b.  Paragraph 3-7a provides that an HD 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.

	c.  Paragraph 3-7b provides that a GD is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an HD.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant's disciplinary history includes one NJP and two positive urinalysis test results for drugs.  Through his misconduct, he knowingly risked a military career and clearly diminished the overall quality of his service below that meriting an HD or GD.

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

3.  In view of the above, the applicant's request should be denied.

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)                                         AR20120022846





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ABCMR Record of Proceedings (cont)                                         AR20120022846



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