BOARD DATE:	  26 June 2014 

		DOCKET NUMBER:  AR20130017296 


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 to an honorable discharge.

2.  The applicant states:

	a.  He believes that his discharge characterization was unjust due to an unfounded accusation.

	b.  He was unjustly accused and tried for misconduct – drug abuse.

	c.  He filed for a loan after putting a down payment toward the purchase of a vehicle.

	d.  He did not qualify for the loan and he was required to either pay off the balance or return the vehicle.

	e.  He had allotted money sent home to his bank account and he asked his mother to withdraw the money needed to pay off the balance of the vehicle, which she refused to do.

	f.  His mother eventually sent him the money, but he was taken aback that as a 21-year old serviceman, he could not access his personal earnings.

	g.  He was upset that he had to plead with his mother for his own earnings.

	h.  After that incident, his unit and battalion were changing over to a new first sergeant and battalion commander.

	i.  The new command meant a battalion-wide inspection of all units and they had a party to make themselves ready for the inspection.

	j.  The night after the party, he woke up to military police (MP) and canines conducting a search of the barracks.

	k.  They were all inspection ready for the commander and he was singled out and informed that the MP's found marijuana in his dresser drawers.

	l.  He assumed that a mistake had been made, but they insisted he left a bag of marijuana in plain sight in his dresser drawers.  He requested to see the bag, but they would not show him the alleged contraband. 

	m.  He and his two roommates were taken in for questioning and he was told his two roommates confirmed that the bag of marijuana was his property.

	n.  He was stripped of his rank, his security clearance was revoked, and he was discharged months later.

	o.  He had not received any prior disciplinary action before that incident.  He was a model Soldier and was proud of his military accomplishment.

	p.  He was devastated and depressed and he took to drinking heavily, which was followed by destructive tendencies.

3.  The applicant provides copies of an undated letter from his mother, an undated letter from Coastal Behavioral Healthcare, Incorporated, and his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 14 June 1985.

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 (RA) on 21 September 1982, in pay grade E-1.  He completed training as a multichannel communications equipment operator.  He was promoted through the ranks to specialist four, pay grade E-4.

3.  The applicant was counseled on at least eight separate occasions between 25 February 1984 and 6 February 1985 for the following offenses:

* Being disrespectful to a noncommissioned officer during formation
* Failure to repair
* Failure to purchase automobile insurance prior to purchasing his vehicle
* Failure to meet standards
* Dishonored checks
* Positive urinalysis

4.  His check cashing privileges were suspended on 7 February 1985.

5.  On 10 February 1985, the applicant accepted nonjudicial punishment (NJP) for wrongful use of marijuana.   

6.  On 11 March 1985, the applicant was notified that he was being recommended for discharge.  His commander cited abuse of illegal drugs combined with disciplinary infractions prejudicial to good order and discipline as the basis for his recommendation for discharge.  He acknowledged receipt of the notification and after consulting with counsel, he elected to have his case considered before a board of officers.

7.  A board of officers convened on 2 May 1985 to determine whether the applicant should be retained in the military.  During the board proceedings it was discovered that the applicant had previously accepted NJP for use of marijuana.  The board found him unacceptable for further retention due to commission of a serious offense.  The board recommended discharge from the service with an Under Other Than Honorable Conditions Discharge Certificate.

8.  The appropriate authority approved the board's recommendation on 6 June 1985.  On 14 June 1985, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14-12c, for misconduct – drug abuse.  He completed 2 years, 8 months, and 24 days of net active service this period.
9.  The applicant provides a letter from his mother supporting his statements and a letter from a social worker at Coastal Behavioral Healthcare, Incorporated, stating that he has been the applicant's therapist for the last year and that he suffers from a profound case of major depression, which left untreated would likely end in his demise.

10.  The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

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

	a.  Chapter 14 of the regulation 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 expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter.

	b.  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.

	c.  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 contentions have been noted.  His supporting evidence has been considered.

2.  His contention that he was a model Soldier prior to the incident is not supported by the evidence of record.  

3.  He was counseled on at least eight separate occasions for his acts of misconduct.  He was notified he was being discharged for misconduct.  He acknowledged receipt of the notification and he elected to have his case considered by a board of officers.  The board found his conduct unacceptable for continued service and recommended a discharge with an under other than honorable conditions characterization of service.  According to the applicable regulation, a discharge under other than honorable conditions is normally appropriate. 

4.  The applicant accepted NJP for wrongful use of marijuana.  During the board proceedings, it was discovered that he had previously accepted NJP after testing positive for marijuana.  Based on his overall record of service, it does not appear that the type of discharge he received was unjust or too harsh.

5.  In view of the foregoing, the applicant's 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)                                         AR20130017296



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ABCMR Record of Proceedings (cont)                                         AR20130017296



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