IN THE CASE OF:	  

		BOARD DATE:  12 September 2013

		DOCKET NUMBER:  AR20130001851 


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 his general discharge be upgraded to an honorable discharge.

2.  The applicant states:

   a.  His general discharge is affecting his ability to obtain employment.  He now works in the oil and gas industry and is required to pass random urinalysis tests to work.  He has been in this industry for 12 years and takes regular drug screenings; he has passed them all.  He is now an inspector and is required to submit a background check.  Recently, he had to start disclosing his prior military service when submitting to Federal background checks.

	b.  He was discharged due to failing a drug screening for marijuana.  It was a first offense, but due to him being a prior service member he was discharged.  He wanted to stay in and redeem himself, but he was discharged anyway.  He presented to the review board recommendations from every superior and officer he worked for with the exception of his first sergeant (1SG) and commander.  His 1SG held the ultimate decision and discharged him.  

3.  The applicant provides no additional evidence.

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 record shows he enlisted in the U.S. Army Reserve on 8 April 1986.  He entered on active duty for training (ADT) on 11 June 1987.  He completed training and was awarded military occupational specialty 91A (Medical Specialist).  He was honorably released from ADT on 28 August 1987 and he was transferred to a Reserve unit.

3.  He enlisted in the Tennessee Army National Guard (ARNG) on 11 September 1987 and was honorably discharged on 30 April 1991.

4.  He enlisted in the Regular Army, in pay grade E-3, on 30 April 1991.  He was promoted to pay grade E-4 on 10 February 1993.

5.  He received negative counseling statements during the period beginning April 1992 through 4 January 1993 pertaining to his finances, duties and responsibilities, operating a privately owned vehicle (POV) without a proper license, and the weight control program.

6.  On 25 March 1993, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for the wrongful use of marijuana between 2 January 1993 and 2 February 1993.  

7.  A Report of Mental Status Evaluation, dated 8 April 1993, shows his behavior was found to be normal.  He was fully alert, fully oriented, and had an unremarkable mood or affect.  His thinking process was clear, his though content was normal, and his memory was good.  He was psychiatrically cleared for chapter 14 action.  

8.  On 27 April 1993, the applicant’s company commander initiated action to separate the applicant under the provisions of Army Regulations 635-200 (Personnel Separations – Enlisted Separations), chapter 14, with a general discharge, for wrongfully using marijuana.  

9.  On 3 May 1993, after a counseling session the applicant acknowledged the proposed separation action.  He acknowledged he could be issued an under other than honorable conditions discharge.  He waived his rights and elected to submit a statement in his own behalf.  

10.  In his statement, dated 3 April 1993, the applicant requested his separation be disapproved or suspended.  He stated:

	a.  He joined the Army because he had very little to look forward to in the civilian world.  A mere 3 days after his 17th birthday, he joined the ARNG.  He served almost 4 years in the ARNG as a 91A.  He joined the [Regular] Army on 30 April 1991 to become a Pharmacy Technician.  A knee injury forced him out of the course.  Thus, he was reclassified to 31L (Wire Systems Installer).  He enjoyed his work and excelled in this field.

	b.  He realized that he made a mistake when he smoked marijuana.  However, since his Article 15, he had made improvements in his appearance and job performance and he has worked very hard on extra duty.  He hopes that his letters of recommendation, military experience, and job performance would be taken into consideration in deciding whether to separate him or not.  He knows he could continue to be an asset to the Army.  If the decision is that he be separated, he requests an honorable discharge.  A general discharge might prove to be an insurmountable obstacle when he tried to find a civilian job that was mentally and physically challenging.

11.  In May 1993, the applicant's company commander recommended approval of the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14.  The company commander stated the applicant received an Article 15 for wrongfully using marijuana.  He had also been counseled for operating a POV without a license, failing to be at his appointed place of duty at the time prescribed, and failing to pay just debts.  His behavior was prejudicial to good order and discipline and his discharge would be in the best interests of the Army.

12.  The separation authority approved his discharge and he was discharged on 12 July 1993, under the provisions of Army Regulation 635-200, 
paragraph 14-12c(2), for Misconduct – Abuse of Illegal Drugs, in pay grade E-3, with a general discharge.  He completed 2 years, 2 months, and 2 days during the period under review with no time lost.

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

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.

   b.  Paragraph 14-12c(2) of the regulation also provided for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs.  It provided that individuals identified as first-time drug abusers, grades E-5 through E-9, would 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 be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge were merited by the Soldier's overall record.

   c.  Paragraph 3-7a further stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed a serious offense in that he wrongfully used illegal drugs.  His company commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c.  After consulting with counsel, he acknowledged the proposed action, waived his rights, and elected to submit a statement in his own behalf.  He also acknowledged he understood he could be issued an under other than honorable conditions discharge.

2.  It appears that his overall record was considered as he was discharged in pay grade E-3 and it was directed he receive a general discharge, as the characterization of service for this type of discharge was normally under other than honorable conditions.  


3.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge and he has submitted neither probative evidence nor a convincing argument that shows his general discharge was inequitable and he now warrants a fully honorable discharge.  He was properly separated for misconduct, commission of a serious offense.

4.  In the absence of evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Therefore, he is not entitled to an upgrade.

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)                                         AR20130001851





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130001851



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1