BOARD DATE:	  1 April 2014

		DOCKET NUMBER:  AR20130011745 


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 discharge be upgraded to honorable.

2.  The applicant states he only made one mistake while serving on active duty and he believes his punishment was too severe based on his performance record.

3.  The applicant did not provide any 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 record shows he enlisted in the Regular Army on 26 June 1979.  He was trained in and served in military occupational specialties (MOS) 54B (Chemical Operations Specialist) and 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was staff sergeant 
(SSG)/E-6.

3.  His record shows he earned the Expert Infantryman Badge, Noncommissioned Officer Professional Development Ribbon with Numeral 2, Army Good Conduct Medal (1st Award), Army Achievement Medal (4th Award), Overseas Service Ribbon, and Army Service Ribbon during his tenure on active duty.

4.  On 21 April 1987, he received a General Officer Letter of Reprimand for testing positive for marijuana on 10 March 1987 during a urinalysis.

5.  On the same day, his unit commander notified the applicant he was initiating action to separate him under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of commission of a serious offense (abuse of illegal drugs).  He cited the applicant's positive urinalysis for marijuana as the basis for taking the proposed separation action.

6.  His record contains a Personal Data Summary sheet that shows he had "good" conduct and efficiency ratings and never had any previous reductions, lost time, court-martial convictions, or other disciplinary action.  It was noted that rehabilitation efforts were not considered because in accordance with Army policy noncommissioned officers would be automatically discharged for drug use.

7.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, the rights available to him, and of the effect of a waiver of those rights.  After this counseling, the applicant voluntarily waived consideration of his case by an administrative separation board/board of officers and elected not to submit a statement in his own behalf or to be represented by military counsel.

8.  On 17 June 1987, the separation authority approved the applicant's separation under the provisions of paragraph 14-12c, Army Regulation 635-200, and directed he be reduced to the lowest grade and with an under other than honorable conditions discharge.

9.  Accordingly, the applicant was discharged on 30 June 1987.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed a total of 8 years and 6 days of active service.

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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 deals with separation for various types of misconduct which includes drug abuse and provides that individuals identified as drug abusers may be separated prior to their normal date of expiration of term of service.  Action will be taken to separate a member for misconduct when it is 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

	b.  Paragraph 14-12d states that first-time drug offenders, grades sergeant (E-5) - sergeant major (E-9) will be processed for separation upon discovery of a drug offense.

	c.  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.

	d.  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 requests his discharge be upgraded to honorable because the punishment was too severe based on his overall service record.

2.  A review of his military personnel record shows that the applicant's service was commendable.  He performed the duties of an infantryman and a chemical operations specialist.  He earned numerous awards to include the Expert Infantryman Badge and four Army Achievement Medals during his period of service.  However, the evidence shows that the applicant was a noncommissioned officer at the time that he tested positive for marijuana.  A noncommissioned officer is charged with a higher level of responsibility and as such his serious act of misconduct rendered his service unsatisfactory and his punishment was in accordance with regulatory guidance in effect at the time, which clearly provides that a noncommissioned officer will be processed for separation upon discovery of drug use. 

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights or that his punishment was too severe.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  Based on his misconduct, the quality of the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel to warrant an upgrade of his discharge.

5.  In view of the foregoing, his request should be denied.

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)                                         AR20130011745





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ABCMR Record of Proceedings (cont)                                         AR20130011745



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