IN THE CASE OF:	  

		BOARD DATE:	  25 July 2013

		DOCKET NUMBER:  AR20130000323 


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, in effect, an upgrade of his general discharge to an honorable discharge.

2.  The applicant states he had an alcohol and drug problem at the time.  He was discharged for two positive urinalysis tests for marijuana.  He was counseled by his platoon sergeant who was not a licensed drug counselor.  He was also not afforded the opportunity for any drug treatment.  The Department of Defense has since acknowledged alcohol and drugs as a disease.  Today, Soldiers are given the opportunity for treatment.  In any case, he has since been sober and clean.   He wants an upgrade of his discharge so he can continue to get the medical attention he needs.

3.  The applicant provides:

* Certificate of Achievement
* Certificate of Live Birth
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 1966/8 (Record of Military Processing - Armed Forces of the United States), page 8

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 17 January 1985 for a period of 3 years.  He held military occupational specialty 52C (Utilities Equipment Repairer).  He was assigned to Fort Carson, CO.

3.  He was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) and the Army Service Ribbon.  The highest rank/grade he attained during his military service was private first class (PFC)/
E-3. 

4.  On 23 October 1985, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.   

5.  On 10 December 1985, he accepted NJP under the provisions of Article 15, UCMJ for larceny of an air freshener.  

6.  On 26 March 1986, he again accepted NJP under the provisions of Article 15, UCMJ for wrongfully using marijuana

7.  On 28 July 1986, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, by reason of misconduct - commission of a serious offense.  He recommended an under other than honorable conditions discharge.

8.  On 29 July 1986, the applicant acknowledged receipt of the separation memorandum.  He consulted with legal counsel and he was advised of the basis for the contemplated separation for misconduct - commission of a serious 
offense, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of a discharge under other than honorable conditions, and of the procedures/rights available to him.  He elected not to submit a statement.  He also acknowledged:

	a.  he understood he could encounter substantial prejudice in civilian life in the event that an undesirable discharge was issued to him, and

	b.  he understood that as a result of the issuance of an under other than honorable conditions discharge, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could encounter substantial prejudice in civilian life.

9.  On 29 July 1986, his immediate commander initiated separation action against him by reason of misconduct - commissioned of a serious offense.

10.  On 18 August 1986, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200 for misconduct - commission of a serious offense with the issuance of a General Discharge Certificate.

11.  On 26 August 1986, the applicant was discharged accordingly.  He completed 1 year, 7 months, and 9 days of creditable active service.

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  He submitted a document from his enlistment contract and a birth certificate. He also submitted a certificate of achievement showing successful completion of a drug treatment program.

14.  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 a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline) and commission of a serious offense.  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 record shows he committed a serious offense in that he abused illegal drugs not once but on two separate occasions.  He could have referred himself for drug treatment at any time.  He was punished under Article 15 for his first offense.  Use of NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  However, when it becomes clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.

2.  As such, when the applicant abused drugs a second time, as required by the applicable regulation at the time, his chain of command initiated separation action against him and notified him of this action.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  His actions at the time clearly brought discredit upon himself and the Army.  Although an under other than honorable conditions discharge was normally appropriate based on the authority and reason for his discharge, it appears his chain of command and separation authority took into consideration his overall record of service and directed the issuance of a general discharge.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130000323



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ABCMR Record of Proceedings (cont)                                         AR20130000323



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