IN THE CASE OF:	  

		BOARD DATE:	  5 September 2013

		DOCKET NUMBER:  AR20130002716 


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 honorable conditions discharge to a fully honorable discharge.

2.  The applicant states his discharge was inequitable because it was based on the one-strike rule for noncommissioned officers with regard to random screening of urinalysis tests.  He further states he had a good service record which includes award of the Army Good Conduct Medal and an honorable discharge for his first four-year enlistment.  In the years following his discharge he has been an upstanding citizen with no subsequent drug or criminal issues, an outstanding work record, and he has been employed by International Business Machines for the past 14 years.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 (RA) for a period of four years on      7 September 1983.  He completed training and served in military occupational specialty 39Y (Field Artillery Tactical Fire Direction Systems Repairer).   On      27 August 1984, he voluntarily extended his four-year enlistment to a period of four years and one month to meet the service remaining requirement for an overseas tour.  On 1 May 1987, he reenlisted in the RA for a period of three years in the rank/grade of specialist/E-4.

3.  On 18 August 1988, while serving in the rank/grade of sergeant (SGT)/E-5, the applicant accepted nonjudicial punishment under the provisions of Article    15 of the Uniform Code of Military Justice for wrongfully using marijuana.  He elected not to appeal.

4.  On 29 August 1988, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct - abuse of illegal drugs.  His immediate commander also notified him that he intended to recommend he receive a General Discharge Certificate.  

5.  The applicant acknowledged receipt of his commander's intent to separate him and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers and he elected to submit a statement in his own behalf.  He further indicated that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

6.  His immediate commander subsequently initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct - abuse of illegal drugs, based on his positive marijuana test results while in the rank/grade of SGT/E-5.

7.  On 22 September 1988, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - abuse of illegal drugs and directed that he be issued a General Discharge Certificate.  On 30 September 1988, the applicant was discharged accordingly.

8.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - abuse of illegal drugs with a character of service of under honorable conditions.  This form further confirms he completed 5 years and 24 days of total active service.  

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. The regulation in effect at the time stated individuals in pay grades E-5 and above could 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.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.

11.  Army Regulation 635-200, 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 contends that his discharge under honorable conditions should be upgraded to an honorable discharge.

2.  The evidence of record shows the applicant, while serving as a noncommissioned officer, committed a serious offense by unlawfully abusing illegal drugs as evidenced by his positive urinalysis for marijuana.  Accordingly, his commander initiated separation action against him.  He was advised of his rights and he willingly waived his rights to appear before a board of officers.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service does not merit an upgrade to his 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)                                         AR20130002716



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130002716



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1