BOARD DATE:	 6 February 2014 

		DOCKET NUMBER:  AR20130008980 


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 discharge under other than honorable conditions.

2.  The applicant states:

* he was an exceptional, well-known, and fast-tracked Soldier who did really well in basic training and at the unit level
* he worked at his unit battery shop which was not maintained to standards and was not well-supervised
* he was asked to write a letter about another Soldier but he refused to do so because he could not lie
* when he refused to write the letter, others became wary of him and avoided him; nobody would talk to him anymore; he was scared and he found the wrong solace
* he was thrown out of the military without anyone providing him help and he was told he is not a veteran
* he has been married for 25 years now, bought a house without the Army's help, and he raised a good family
* he just needs help with an upgrade which would make his life easier

3.  The applicant does not provide any 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 records show he enlisted in the Regular Army on 12 September 1985 and he held military occupational specialty 63J (Quartermaster and Chemical Equipment Repairer). 

3.  He was assigned to Company C, 705th Support Battalion, Fort Polk, LA.  He was awarded or authorized the Army Service Ribbon and he attained the rank/grade of specialist four/E-4. 

4.  On 13 October 1987, he participated in a unit urinalysis and his urine sample tested positive for marijuana.  

5.  On 5 November 1987, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.  

6.  On 19 November 1987, he again accepted NJP under the provisions of Article 15 of the UCMJ for being drunk and disorderly.

7.  On 12 January 1988, his chain of command enrolled him in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  It is unclear if he entered the program, made any progress, or was deemed a rehabilitative failure. 

8.  On 20 January 1988, he participated in a unit urinalysis and his urine sample tested positive for marijuana.  

9.  On 3 February 1988, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana.  

10.  On 16 February 1988, the applicant's immediate commander notified him of his intent to initiate separation action against him for misconduct – commission of a serious offense – in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c.  The immediate commander cited the applicant's positive urinalysis and recommended a discharge under other than honorable conditions.

11.  On 28 March 1988, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action 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 available to him.  He waived consideration of his case by an administrative separation board and/or personal appearance before a board and he elected to submit a statement in his own behalf.  He acknowledged he:

* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions

12.  In his statement, the applicant indicated he felt he had been punished twice for marijuana and he had completed his punishment.  He had previously self-referred to ADAPCP but it was too late to realize he had a drug problem.  

13.  The applicant's immediate commander initiated separation action against him due to misconduct in accordance with Army Regulation 635-200, paragraph 14-12c.  

14.  His battalion commander recommended approval with his service characterized as under honorable conditions (general) while his brigade commander recommended approval with his service characterized as under other than honorable conditions.

15.  On 13 April 1988, subsequent to a review for legal sufficiency, the separation authority approved the applicant's discharge, with his service characterized as under other than honorable conditions.  The applicant was discharged accordingly on 19 April 1988.  

16.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged for misconduct under the provisions of Army Regulation 635-200, chapter 14, with his service characterized as under other than honorable conditions.  He completed 2 years, 7 months, and 12 days of creditable active military service. 

17.  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.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was 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.

	a.  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.

	b.  Paragraph 3-7b 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 records show he committed a serious offense (twice testing positive on a urinalysis).  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  His discharge was appropriate because the quality of his service was not consistent with acceptable personal conduct and performance by Army personnel.  His misconduct and failure to respond positively to counseling by members of his chain of command diminished the quality of his service.

3.  Contrary to his belief that his chain of command did not provide him help, by his own admission, he stated in a document contained in his record that he self-referred to ADAPCP.  Additionally, his commander referred him to ADAPCP as well. 
4.  The applicant's service was not satisfactory and insufficiently meritorious to warrant an honorable or a general discharge.  Therefore, he is not entitled to the 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)                                         AR20130008980



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ABCMR Record of Proceedings (cont)                                         AR20130008980



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