IN THE CASE OF:
BOARD DATE: 15 July 2014
DOCKET NUMBER: AR20130020526
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 general discharge be upgraded to honorable.
2. The applicant states that after his grade was reduced he did not want to continue active service. He was not given the opportunity to attend drug abuse classes.
3. The applicant provided a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 on 23 January 1979. He held military occupational specialty (MOS) 19E (M1 Abrams Armor Crewman).
3. He served in Germany and was awarded the Army Achievement Medal, National Defense Service Medal, Army Service Ribbon, Army Good Conduct Medal (2 Awards), Noncommissioned Officer Professional Development Ribbon with numeral 1, Overseas Service Ribbon, and the Marksman Marksmanship Qualification Badge with Pistol Bar. The highest rank he attained was sergeant (SGT)/E-5.
4. On 16 October 1985, the applicant, while serving as a SGT, accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 19 August 1985 for wrongfully using of marijuana.
5. On 24 October 1985, the applicant's 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, paragraph
14-12c and d. The reason for his proposed action was the applicant's positive urinalysis as a noncommissioned officer (NCO).
6. He was advised by counsel of the basis for the contemplated separation action and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights. He waived his right to an administrative separation board and submitted a statement in his own behalf. In his statement, he requested he be given an honorable discharge based upon his outstanding record of 6 years and 9 months of service.
7. On 29 October 1985, the applicant's commander recommended separation under the provisions of Army Regulation 635-200, paragraphs 14-12c and d because of the applicant's positive urinalysis as an NCO.
8. On 13 November 1985, the applicant received a general discharge. He had completed 6 years, 9 months, and 21 days of creditable active service.
9. There is no available evidence showing he applied to the Army Discharge Review Board for an upgrade of his discharge.
10. 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. 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 Soldiers overall record. At the time, paragraph 14-12 (Abuse of Illegal Drugs) provided that first-time drug offenders in grades E5-E9 would be processed for separation upon discovery of a drug offense.
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.
DISCUSSION AND CONCLUSIONS:
1. The evidence also shows that, while serving as a SGT, the applicant had a positive urine test result and accepted NJP for the wrongful use of marijuana. Processing for separation was mandatory. Further, he could have referred himself for treatment.
2. The evidence of record shows the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
3. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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) AR20130020526
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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