IN THE CASE OF:	  

		BOARD DATE:	    5 August 2014

		DOCKET NUMBER:  AR20130020956 


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 under honorable conditions to an honorable discharge.

2.  The applicant states he received his discharge for a positive urinalysis result for marijuana.  He made a mistake in judgment that he deeply regrets.  He has been married for 10 years and has three school-age children.  It is his desire to upgrade his discharge so his children may be proud of him.  He has been employed at the same location for over 9 years in a position which requires him to pass a urinalysis.  He has remained drug free ever since his discharge.  He further states he is proud of his service, wishes to set the record straight, and is embarrassed over the entire situation.

3.  The applicant provides 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 31 October 1994 after having 4 months and 12 days of prior active service.

3.  The evidence shows the applicant tested positive for tetrahydrocannabinol during a command-directed urinalysis on 18 November 1997.

4.  On 9 January 1998 while holding the rank of specialist and in a closed hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana at or near Fort Hood, TX, between on or about 18 October and 18 November 1997.

5.  The DA Form 2627 (Record of Proceedings under Article 15, UCMJ) shows he elected not to demand trial by court-martial and he elected not to submit an appeal to the Article 15.  However, he submitted a statement in which he agreed to sign his Article 15, but did not admit to the charge of using marijuana.  He further stated the reason he signed the form was due the fact that if he chose a court-martial proceeding he would risk the chance of being convicted of a felony offense at 22 years of age.  He claims he was already having financial problems due to a separation from his wife and being a geographical bachelor.  If he were to receive a forfeiture of pay or reduction in rank, he would not be able to support himself at his current place of residence.  He requested an honorable discharge.

6.  The applicant's commander subsequently notified him that he was initiating action to discharge him from the service for misconduct – commission of a serious offense – under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c.  His commander recommended a general discharge.

7.  On 5 February 1998, the applicant acknowledged receipt of the notification.  He waived legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, the rights available to him, and the effect of any action taken by him in waiving his rights.

8.  On 17 February 1998, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 14, and directed the issuance of a general discharge.

9.  On 9 March 1998, the applicant was discharged accordingly with a general discharge.  His DD Form 214 confirms he was separated for misconduct.  He completed 3 years, 4 months, and 9 days of net active service during this period with no time lost.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 provides for separation for various types of misconduct, which include 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.

12.  Army Regulation 635-200, 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 applicant contends his discharge should be upgraded.

2.  The evidence of record shows he committed a serious offense in that he wrongfully used illegal drugs.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was accordingly discharged under the provisions of Army Regulation 635-200, chapter 14, due to his misconduct.

3.  The evidence of record shows his discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, he is not entitled to the 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 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)                                         AR20130020956



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130020956



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1