IN THE CASE OF:	  

		BOARD DATE:  17 September 2013

		DOCKET NUMBER:  AR20130002980 


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 that his discharge under other than honorable conditions be upgraded to a general discharge with a more favorable narrative reason for separation.

2.  The applicant states that 26 years have passed and he did not use drugs then nor does he use drugs now.  He states he did not want out of the Army; he just needed help with family issues.  He has a family to take care of and he cannot find a good job with the discharge he received.

3.  The applicant provides no additional documents with his application.

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 26 November 1986 for a period of 3 years and training as an armor crewman.  He completed one-station unit training at Fort Knox, Kentucky and he was transferred to Fort Riley, Kansas for his first and only assignment.

3.  On 28 August 1987, nonjudicial punishment (NJP) was imposed against the applicant by the battalion commander for the wrongful use of marijuana.  His punishment consisted of a reduction to pay grade E-1, a forfeiture of $329.00 pay for 2 months (suspended for 120 days), and 45 days of extra duty and restriction.  The applicant did not appeal the punishment.

4.  On 2 September 1987, the applicant’s commander notified the applicant that he was initiating a bar to reenlistment against him.  He cited as the basis for his recommendation the applicant’s NJP for marijuana use, multiple counselings for indebtedness, and for writing bad checks.  The applicant declined the opportunity to submit a statement in his own behalf and the battalion commander approved the bar to reenlistment on the same date. 

5.  On 8 September 1987, the battalion commander vacated the suspended portion of his NJP because the applicant broke restriction.

6.  On 9 September 1987, the applicant again tested positive for marijuana.

7.  On 1 October 1987, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct – drug abuse.

8.  After consulting with counsel the applicant waived all of his rights and elected not to submit a statement in his own behalf.  He also acknowledged that he understood the provisions for applying to the Army Discharge Review Board (ADRB) and this Board for an upgrade of his discharge.

9.  On 2 November 1987, the appropriate authority (a major general) approved the recommendation for discharge and directed the issuance of an under other than honorable conditions discharge.

10.  Accordingly, on 4 November 1987, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c due to misconduct – drug abuse, with an Under Other Than Honorable Conditions Discharge Certificate.  He had completed 11 months and 9 days of active service.


11.  There is no indication in the available records that he applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

13.  Paragraph 3-7a of Army Regulation 635-200 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.  

14.  Paragraph 3-7b of Army Regulation 635-200 also provides that a general discharge 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 honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Accordingly, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.

3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating when compared to the nature of his offenses.  He tested positive for marijuana twice and he did not appeal his punishment.  In addition, he had additional infractions of discipline.  The applicant’s overall service simply does not rise to the level of a discharge under honorable conditions.

4.  Accordingly, there appears to be no basis to grant the applicant an upgrade of 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)                                         AR20130002980



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ABCMR Record of Proceedings (cont)                                         AR20130002980



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