BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20140000917 


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 honorable condition (general) character of service to honorable.

2.  The applicant states he believes his post-traumatic stress disorder (PTSD) was the primary reason for his misconduct.  At the time of his discharge, he had an Equal Employment Opportunity (EEO) complaint against his commander pending, and he was going through a divorce.  He only needed a little help from his chain of command, but he did not receive any help.  His commander had the discretion to offer him help or prosecute.  He feels he would have been permitted to finish the remainder of his second enlistment if he had been a specialist/E-4.  However, he was sergeant (SGT)/E-5 at the time of his misconduct and, therefore, was not allowed to receive treatments for his condition.  Nevertheless, he is a changed man.  He has earned three bachelor degrees, a master degree, and is preparing to run for public office.  He feels he deserves an honorable characterization of service.  

3.  The applicant provides 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 13 October 1988 and held military occupational specialty 63T (Bradley Fighting Vehicle System Mechanic).  The highest rank/grade he attained was SGT/E-5.

3.  His record contains a Urinalysis Identification Log, dated 28 September 1994, and a DA Form 2624 (Specimen Custody Document – Drug Testing), dated 
6 October 1994, showing he tested positive for tetrahydrocannabinol (THC).

4.  On 17 October 1994, his unit received a memorandum from the Alcohol and Drug Control Officer, stating the applicant tested positive for the drug THC.  The memorandum also requested his commander complete a DA Form 8003 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Enrollment Form) on the applicant's behalf no later than 4 November 1994.

5.  On 2 November 1994, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the wrongful use of a controlled substance, marijuana.

6.  On 2 November 1994, he was formally counseled/notified that his commander was initiating separation proceeding against him in accordance with chapter 
14-12c of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct-abuse of illegal drugs.

7.  His record contains a Report of Mental Status Evaluation, dated 10 November 1994, showing he was psychiatrically cleared for any administrative actions deemed necessary by his command.  

8.  His record contains a Standard Form (SF) 93 (Report of Medical History) and an SF 88 (Report of Medical Examination), dated 30 November 1994, showing he was medically qualified for separation; however, it does show he suffered from post-war trauma in 1991.  


9.  On 13 December 1994, his immediate commander notified him of his intent to initiate separation action against him in under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2) (Misconduct – Abuse of Illegal Drugs) for testing positive for THC on a random urinalysis.

10.  On 14 December 1994, he consulted with legal counsel and he was advised of the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He acknowledged that he understood he could encounter substantial prejudice in civilian life if a general discharge was issued to him.  He requested counsel and a personal appearance before an administrative separation board.  However, he agreed to waive his right to request to an administrative separation board if he was granted an under honorable conditions (general) characterization of service.

11.  On 20 January 1995, the separation authority approved the discharge action under the provisions of Army Regulation 635-200, chapter 14, paragraph 
14-12c(2) and directed the applicant be discharged and issued a General Discharge Certificate.  Accordingly, he was discharged on 27 January 1995.

12.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of "Misconduct" with a characterization of service of general under honorable conditions.  This form further confirms he completed 6 years, 3 months, and 15 days of net active service this period.

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 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  First-time offenders, grades SGT (E-5) - sergeant major (E-9) will be processed for separation upon discovery of a drug offense.  "Processed for separation" means that separation action will be initiated and processed through the chain of command to the separation authority for appropriate action.  The immediate and 



intermediate commanders will recommend separation or retention.  Recommendation will be made as to the characterization of service.  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.

	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 applicant tested positive for the use of marijuana.  He knowingly and wrongfully made the choice to use an illegal drug.  Testing positive for illegal drug use is a punishable offense.

2.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Although an under other than honorable conditions discharge was normally considered appropriate for the offense committed, it appears his chain of command considered his overall record of service when the separation authority directed the issuance of a general discharge.

3.  The evidence of record shows he suffered from post-war trauma in 1991.  However, he was psychiatrically cleared for separation and there is no evidence and the applicant has not provided sufficient evidence to show his post-war trauma caused him to use or sell illegal drugs.  

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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)                                         AR20140000917





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ABCMR Record of Proceedings (cont)                                         AR20140000917



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