IN THE CASE OF:	  

		BOARD DATE:	    24 October 2013

		DOCKET NUMBER:  AR20130003332 


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 upgrade of his under other than honorable conditions discharge to an honorable or at least a general discharge.

2.  The applicant states he enlisted at age 17 and he had been addicted to marijuana since age 14.  He was immature and he did not understand the seriousness and severity of his "unfavorable" discharge and what the acceptance of the discharge would mean.  He was not offered any counseling for his drug problems, only disciplinary actions.

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 on 14 September 1982.  During his enlistment processing, he completed a DD Form 1966 (Application for Enlistment) wherein he indicated he had never been involved in the use, purchase, possession, or sale of marijuana or other harmful or habit forming drugs.

3.  On 13 May 1983, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the wrongful possession of marijuana on 1 April 1983 and the wrongful use of marijuana between 26 March and 4 April 1983.

4.  On 16 May 1983, a DA Form 4126-R (Bar to Reenlistment Certificate) was initiated on the applicant by his unit commander.  This form indicates he received Article 15 punishment on 13 May 1983.  It further shows he had a positive urinalysis result on 1 April 1983, he received a Letter of Reprimand on 12 May 1983, and his jump pay was terminated on 16 May 1983.

5.  On 29 November 1983, court-martial charges were preferred against the applicant for the wrongful possession and use of marijuana on 18 September 1983 and the wrongful use of marijuana on 2 November 1983.

6.  A Memorandum of Record from his platoon leader, dated 15 December 1983, noted correctional custody and enrollment in the Operation Awareness Program (a forerunner to the current Army Substance Abuse Program) had not been able to cure him of his desire to smoke marijuana.  Members of his chain of command had counseled him on the incompatibility of smoking marijuana and military service.  In every other aspect of his Soldiering skill the applicant usually exceeded requirements.  Other than the two times he was caught smoking marijuana there had been no disciplinary problems.

7.  On 27 December 1983, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial, for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged he was guilty of the charges or lesser included charges and that, if his request for discharge is accepted, he could receive a discharge under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an under other than honorable conditions discharge.


8.  On 11 January 1984, his unit commander recommended disapproval of the chapter 10 discharge.  He stated the applicant was apathetic toward the rules and regulations of the Army as demonstrated by his repeated drug misconduct.  He stated the applicant had received NJP on 13 May 1983 for possession and use of marijuana.  Based on a second marijuana incident on 20 September 1983, the unit commander initiated discharge proceedings for misconduct.  On 2 November 1983, the applicant was involved in another marijuana incident, at which time the unit commander recommended court-martial action be taken.  The applicant was involved in yet another marijuana incident on 9 January 1984.  Based on the repeated offenses the unit commander recommended disapproval of the applicant's request for separation under Army Regulation 635-200,
chapter 10 as the applicant's actions were prejudicial to good order and discipline and it amounted to basically no punishment for his misconduct.  The battalion commander also recommended disapproval of the chapter 10 request stating he also believed that actions such as these should be punished just as any other person who breaks the law – by court action.

9.  On 25 January 1984, the separation authority, a major general, approved the applicant's discharge under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service – in lieu of trial by court martial and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate and reduced to the lowest enlisted grade.

10.  On 21 February 1984, the applicant was discharged accordingly.  He completed 1 year, 5 months, and 8 days of creditable active service.

11.  In July 1984 the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.  However, on 23 January 1985, he withdrew his application.

12.  On 30 January 1985, the applicant requested the ABCMR expunge the results of two urinalyses from his record and accordingly upgrade his discharge.  He stated that he was falsely accused of having positive findings for marijuana twice.  

13.  He supported this request with a copy of a Department of the Army, Office of the Deputy Chief of Staff for Personnel letter advising him that following a DA review of drug testing procedures it had been found that the lab results for urinalyses performed during the period 27 April 1982 through 31 October 1983, which included his test results, did not meet all scientific and/or legal requirements for use in any disciplinary or administrative actions.


14.  In response to a Congressional Inquiry, on 13 March 1986, the applicant's Congressman was advised that the applicant's petition had been received by the ABCMR and it was awaiting assignment to an examiner.  However, a review of the applicant's record did not reveal any additional documentation related to his request to this Board or any final action that may have been taken.

15.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a states that an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.

	c.  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  Based on testing irregularities at the drug processing laboratory, the utilization of the results of any urinalysis preformed between 27 April 1982 and 31 October 1983 were found to not meet the legal requirement for use in disciplinary or administrative actions.

2.  Additionally, based on the DA letter of invalid test results, it is reasonable to presume that some or most of the charges for his marijuana usage offenses and his NJP prior to October 1983 were based on urinalysis testing that had been declared to be legally and administratively invalid.

3.  However, both the NJP and the subsequent court-martial action also included the charges of possession of marijuana as separate charges subsequent to the invalid usage charges.  Supporting this is the applicant's platoon leader's memorandum wherein he stated the applicant was "caught" smoking marijuana.


4.  Additionally, the applicant stated in his current application that he had been addicted to marijuana since age 14, 3 years prior to his entrance onto active duty.  This statement implies he had lied to his pre-service drug involvement at the time of his enlistment processing.  Had he not lied about his addiction it is likely he would not have been allowed to enlist, so he does not have “clean hands.”  

5.  The applicant's contention he was not afforded any counseling is not supported by the evidence of record.  His record shows he participated in the Operation Awareness Program which was part of the Army's program to deal with the drug and alcohol abuse problems at the time of his service.

6.  The applicant's voluntary request for separation was administratively correct and in conformance with applicable regulations.  He has failed to submit evidence to the contrary.

7.  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)                                         AR20130003332



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ABCMR Record of Proceedings (cont)                                         AR20130003332



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