IN THE CASE OF:	  

		BOARD DATE:	  24 July 2014

		DOCKET NUMBER:  AR20130020276 


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 under other than honorable conditions (UOTHC) discharge to a general, under honorable conditions discharge (GD).  

2.  He states he believes his discharge was too severe for the infraction he committed, and his discharge prevents him from receiving veterans' benefits he has earned.  He served honorably for 13 years.  He served in Iraq, and he was a drill instructor.  He learned his father was suffering from lung and prostate cancer and was dying.  He was under a tremendous amount of stress and used marijuana once as an escape.  It was a mistake he wishes he had never made.  Although he used marijuana only once, he was tested twice within a 30-day period.  He had two positive tests because his system had not cleared from the first and only use.  

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 3 October 1984, the applicant enlisted in the Regular Army.  He reenlisted on 17 December 1987, 10 August 1989, and 15 February 1994.  He was promoted to staff sergeant (SSG)/E-6 effective 1 December 1992.  

3.  His DA Form 2-1 (Personnel Qualification Record) shows he served in Saudi Arabia from 4 December 1990 to 21 April 1991 during Operation Desert Shield and Desert Storm.

4.  On 6 July 1995, he was assigned to duty as a Drill Sergeant.  

5.  On 8 February 1997, he was removed from the Drill Sergeant Program for failure to maintain high standards of military conduct and/or professionalism.  

6.  On 8 September 1997, his battalion commander reprimanded him for unprofessional conduct and lack of integrity because he had turned in an incorrect version of a test.  When questioned, he had denied having done so, but approximately 2 weeks later he admitted he had thrown the original test away and turned in a different version.

7.  On 17 December 1997, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana between 7 October and 7 November 1997.  His use of marijuana was detected by testing of a urine sample he provided on 7 November 1997.  He did not appeal.

8.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 17 December 1997, shows a clinical psychologist found the applicant to meet retention standards and to have no psychiatric disease or defect warranting disposition through medical channels.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by command.

9.  On 6 February 1998, his battery commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for a pattern of misconduct and commission of a serious offense.  His battery commander stated he was recommending he receive a GD Certificate and advised him of his rights.  His battery commander stated the reasons for the proposed action were:

* wrongful use of marijuana
* wrongfully taking the property of another Soldier
* wrongfully using another Soldier's cell phone to make unauthorized calls
* cheating on a test
* treating initial entry Soldiers in an abusive, degrading, and humiliating manner

10.  On 9 February 1998, 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.

11.  After consulting with counsel, he waived consideration of his case by an administrative separation board and personal appearance by such a board.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an other than honorable discharge were to be issued to him.  He acknowledged that, as the result of a UOTHC discharge, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  

12.  On 9 February 1998, he requested a conditional waiver of consideration of his case by an administrative separation board contingent upon receiving no less than a GD.  

13.  On 12 February 1998, he received NJP for wrongfully using marijuana between 20 December 1997 and 20 January 1998.  The DA Form 2627 documenting the NJP shows his use of marijuana had been detected by testing a urine sample he provided on 20 January 1998.  

	a.  He appealed the NJP.  In his letter of appeal, he stated he had been working with the U.S. Army Criminal Investigation Command (commonly known as CID).  He stated, in effect, that while trying to get a Soldier to sell some illegal drugs and stolen weapons, he was forced to use marijuana in a situation in which he feared for his personal safety.  He stated he felt it was the right thing to do at the time and that he had assisted CID in four other set-ups that had resulted in three convictions.

	b.  On 18 February 1998, after consideration of all matters presented in appeal, his appeal was denied by the proper authority.  

14.  His chain of command recommended disapproval of the conditional waiver of consideration of his case by an administrative separation board.  The general court-martial convening authority disapproved his request for a conditional waiver of his right to an administrative separation board and referred his case to a board of officers.  
15.  On 21 April 1998, a board of officers convened to consider whether the applicant should be discharged for a pattern of misconduct and commission of a serious offense.  

	a.  Prior to convening of the board, the applicant's defense counsel objected to certain evidence being presented to the board by the Government.  Specifically, defense counsel objected to introducing evidence related to a 20 January 1998 urinalysis test and an 18 February 1998 urinalysis test on the grounds that neither test was cited as a reason for separation in the letter of notification given to the applicant.  The legal advisor ruled that the board could not consider the two tests on the issue of misconduct or separation, but could consider them on the issue of characterization of service.  Defense counsel and the board recorder agreed to bifurcate the proceeding so that evidence of the two urinalysis tests would be introduced only after the board had heard the evidence and made recommendations regarding whether the alleged misconduct occurred and whether separation was warranted.  The available records are void of documentation indicating any deviation from this agreement.  

	b.  The record contains an unsworn statement made by the applicant.  He summarized his service record and personal life.  He stated that when he tested positive for marijuana he "had a lot of things going on in [his] life."  He stated he had been depressed because he could not see his four children.  He made no mention of having learned his father was suffering from lung and prostate cancer and was dying.

16.  After carefully considering the evidence, the board found the applicant had committed acts or patterns of misconduct within the meaning of Army Regulation 635-200, paragraph 14-12, and that he was undesirable for retention in the military service.  The board recommended he be discharged with issuance of an Other Than Honorable Discharge Certificate.  The findings and recommendations were approved by the proper authority.

17.  On 12 June 1998, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of misconduct after completing 12 years, 8 months, and 10 days of net active service.  His DD Form 214 (Certificate of Release of Discharge from Active Duty) shows his service was characterized as UOTHC.  

18.  On 17 December 1999, the President, Army Discharge Review Board, informed the applicant his request for a change in the character of and/or reason for his discharge was denied.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

	b.  Paragraph 3-7b provides that a GD 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

20.  A review of scientific literature regarding how long cannabinoids (the metabolized components of marijuana) can be detected in urine shows that research has found varying periods among test subjects.  In most cases, however, 30 days is the approximate period after marijuana use that cannabinoids can be expected to be found in urine.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his UOTHC discharge to a GD.

2.  The ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for veterans' benefits.  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, that all requirements of law and regulation were met, and that 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.  He contends that he had two positive tests because his system had not cleared from the first and only use of marijuana.  The record contradicts his statement that he used marijuana once.  He first tested positive in November 1997, and he provided a urine sample in January that also tested positive.  Based on the time that elapsed between the November and January urinalyses, it is probable that he did, in fact, use marijuana on more than one occasion.  The positive urinalysis in February 1997 may have been the result of the same drug use that caused a positive urinalysis in January 1997; however, even if that evidence had been disregarded, there was ample remaining evidence to support the determinations made during his discharge proceedings. 

5.  After he reenlisted in 1994, he was removed from the Drill Sergeant Program for failure to maintain high standards of military conduct and/or professionalism, he was reprimanded for unprofessional conduct and lack of integrity, and he was found to have used an illegal drug on more than one occasion.  The record indicates he had also wrongfully taken another Soldier's property and had wrongfully used another Soldier's cell phone to make unauthorized calls.  During his final enlistment, he clearly exhibited a pattern of misconduct that did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service.  Therefore, there is an insufficient basis upon which to upgrade his discharge.

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)                                         AR20130020276





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ABCMR Record of Proceedings (cont)                                         AR20130020276



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