BOARD DATE:	 25 September 2014 

		DOCKET NUMBER:  AR20140000814 


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 was wrongfully discharged for a first-time offense for marijuana use
* he was home on leave for the holidays and exercised poor judgment when he used marijuana one time
* he received nonjudicial punishment under the provisions Article 15, Uniform Code of Military Justice
* he complied with and fulfilled the demands set forth, but he was not allowed the opportunity to complete Operation Awareness, a program for personnel who had a first-time offense with drugs or alcohol
* his service record was exemplary and he received numerous awards and commendations
* he maintained a positive attitude and carried out his duties while completing his disciplinary actions and he received letters from his commanding officers supporting his retention
* he continued to strive for excellence when he returned to civilian life
* he earned a college degree and he has had a long career as a carpenter/cement finisher
* he has consistently applied leadership principles and traits he learned and he has continued to serve his community with integrity and honesty
* one error in judgment has blemished his record for a long time

3.  The applicant provides:

* two copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Distinguished Trooper of the 82d Airborne Division correspondence
* Headquarters, 82d Airborne Division Permanent Orders 34-40, dated 24 February 1986
* Battalion Trooper of the Month correspondence
* DA Form 2496 (Disposition Form), dated 27 March 1986
* DA Form 4856 (General Counseling Form), dated 21 April 1986
* eight letters of support
* Army Achievement Medal Certificate
* nine certificates of achievement, appreciation, or training
* Associate's Degree in Criminal Justice Diploma
* extracts of his discharge packet
* change of address

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 20 April 1983.

3.  Records show the applicant tested positive for tetrahydrocannabinol, the active ingredient in marijuana, on 27 February 1986.

4.  On 20 March 1986, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully using marijuana between 11 and 21 January 1986.  At the time of the incident, the applicant held the rank/grade of sergeant (SGT)/E-5.

5.  On 17 April 1986, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, based on his positive urinalysis for tetrahydrocannabinol on 27 February 1986.  He recommended the applicant's retention and stated his duty performance had been superior except for the positive urinalysis on 27 February 1986 and he had been the Soldier of the Month, division runner up, and an excellent squad leader.

6.  On 17 April 1986, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  He requested an appearance before a board of officers and he submitted statements from third parties in his behalf.  He indicated he understood:

* he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws

7.  The third-party statements in his behalf cite his achievements, positive attitude, potential for rehabilitation, and recommend his retention in the U.S. Army.

8.  His records are void of any evidence of an appearance before or recommendation by a board of officers.

9.  On 21 April 1986, the applicant's intermediate commander recommended his retention and indicated the applicant was enrolled in Operation Awareness.

10.  On 12 May 1986, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – abuse of illegal drugs – and directed the issuance of a General Discharge Certificate.

11.  On 23 May 1986, the applicant was discharged under honorable conditions (general).  His DD Form 214 shows he was discharged for misconduct – drug abuse – under the provisions of Army Regulation 635-200, paragraph 14-12c.  He completed 3 years, 1 month, and 4 days of creditable active military service.

12.  The applicant provided copies of extracts of his military records and certificates of appreciation, achievement, and training.  He also provided copies of letters of support written at the time of his discharge processing, his Army Achievement Medal Certificate, his college diploma showing he received an Associate's Degree in Criminal Justice after his discharge, and a change of address.

13.  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.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 9 provided the authority and outlined the procedures for discharging individuals because of alcohol or other drug abuse rehabilitation failure.  A member who had been referred to the Alcohol and Drug Abuse Prevention and Control Program for alcohol/drug abuse could be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there was a lack of potential for continued Army service and rehabilitation efforts were no longer practical.  When not precluded by the limited-use policy, offenses of alcohol or other drug abuse could properly be the basis for discharge proceedings under chapter 14.  However, the evidentiary aspect of the limited-use policy was applicable to discharge under paragraph 14-12 or other separation provisions.  Members processed for separation under other provisions of this regulation, who also are or become subject to separation under this chapter and whose proceedings on other grounds ultimately result in their retention in the service, will be considered for separation under this chapter.  A member who has less than 6 years of military service is not entitled to a board.  At the time of the applicant's separation, an honorable or general discharge was authorized.

	b.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.

		(1)  Paragraph 14-12c provided that members were subject to separation under this paragraph for commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely-related offense under the Manual for Courts-Martial.

		(2)  Paragraph 14-12d provided that first-time offenders in grades E-5 through E-9 would be processed for separation upon discovery of a drug offense.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this paragraph.

	c.  Paragraph 3-7a provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant tested positive for marijuana use while serving in the rank/grade of SGT/E-5.  Although he believes he was wrongfully discharged for a first-time offense for marijuana use, Army Regulation 635-200, chapter 14, clearly provided for his separation for misconduct under the provisions of paragraphs 14-12c and 14-12d.

2.  Although he requested to appear before a board of officers, a member who has less than 6 years of military service is not entitled to a board.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Considering that the issuance of a discharge under other than honorable conditions was normally appropriate in such cases, his discharge under honorable conditions was highly favorable given the fact that he was a noncommissioned officer at the time of his offense.

4.  In view of the foregoing evidence, he is not entitled to an honorable 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 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)                                         AR20140000814



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ABCMR Record of Proceedings (cont)                                         AR20140000814



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