IN THE CASE OF:	  

		BOARD DATE:	  1 April 2014

		DOCKET NUMBER:  AR20130013391 


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 general discharge (GD) to an honorable discharge (HD) and that the reason for separation be changed to miscellaneous/other.

2.  The applicant states 21 years ago he made a poor decision as a young man at the age of 21 to smoke marijuana while on leave.  He has since become a wonderful husband, father, and neighbor.  He helps people with drug addiction and disabilities.  He has recently accepted a job with the State of Oklahoma as a veteran's representative in the Workforce Department.  Nothing would make him more proud than to display his discharge certificate in his office, not only for the veterans he will be assisting but also for his co-workers, family, and friends.

3.  He provides no documentary evidence in support of his request.

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.  On 25 May 1990, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 19D (Cavalry Scout).  The highest rank he held was private first class/pay grade E-3.

3.  On 3 February 1992, he provided a urine sample that tested positive for marijuana use.

4.  On 18 March 1992, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.  He did not appeal the punishment.

5.  On 8 September 1992, he again provided a urine sample that tested positive for marijuana use.

6.  On 6 October 1992, he accepted NJP under the provisions of Article 15, UCMJ for wrongfully using marijuana.  He did not appeal the punishment.

7.  On 13 November 1992, his commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c for misconduct.  He informed the applicant of his rights and informed him that he was recommending separation because of the applicant's two-time use of marijuana.  He indicated he was recommending the applicant be given an under other than honorable conditions discharge.  The applicant acknowledged receipt of the notification.

8.  On 19 November 1992, he consulted with counsel who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights.  He waived consideration of his case by an administrative separation board contingent on receiving a GD.  He acknowledged he could expect to encounter substantial prejudice in civilian life if a GD were issued to him.  

9.  After consulting with counsel, he submitted a statement in his own behalf.  He stated that other than the two instances of NJP he had never been in trouble during his 30 months of military service.  He requested that he be given a GD instead of an under other than honorable conditions discharge.  

10.  On 19 November 1992, his commander submitted a recommendation that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  His commander recommended that he receive an under other than honorable conditions discharge.

11.  An intermediate commander recommended he be given a GD.  

12.  On 4 December 1992, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed he be given a GD. 

13.  On 11 December 1992, the applicant was discharged with a GD after completing 2 years, 6 months, and 17 days of net active service.  Item 25 (Separation Authority) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry "AR 635-200, PARA 14-12c," and item 28 (Narrative Reason for Separation) shows the entry "MISCONDUCT–COMMISSION OF A SERIOUS OFFENSE."

14.  There is no evidence showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  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 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 below E-5 could 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.

	b.  Paragraph 3-7a provides that an HD 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 available evidence does not support the applicant's request for an upgrade of his GD to an HD.

2.  The passage of time is not a basis for upgrading a properly-issued discharge.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  The record supports the reason and authority for discharge shown on his DD Form 214.  

4.  The applicant twice received NJP for testing positive for marijuana use.  This record of indiscipline is a significant breach of the conduct expected of a Soldier; therefore, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Accordingly, he is not entitled to an HD.

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)                                         AR20130013391



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ABCMR Record of Proceedings (cont)                                         AR20130013391



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