IN THE CASE OF:	  

		BOARD DATE:	  8 January 2015

		DOCKET NUMBER:  AR20140007655 


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 to an honorable discharge.

2.  The applicant states he tested positive for marijuana early in his period of service and at the end of his service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) states he was discharged as a drug abuser which is false in his view.  He served with honor with the 53rd Quartermaster, at Fort Hood, TX.  He enjoyed his experience of being a Soldier with the U.S. Army.  He gained invaluable knowledge and experiences and would like his service record to reflect that.  He was a young adult with very little life experience.  Correcting his discharge would greatly enhance his future employment opportunities.  He recognizes this is something he should have addressed long ago as he is by no means a drug abuser, prescription or otherwise.

3.  The applicant provides a copy of his DD Form 214.

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) on 28 August 1985.  He was discharged from the DEP on 19 September 1985 and enlisted in the Regular Army, in pay grade E-1, on 20 September 1985. He was awarded military occupational specialty 88M (motor transport operator).  

3.  He received counseling between June and October 1986 for the following:

* duty performance, responsibilities, and eligibility for promotion
* failure to be in formation
* failure to be at his appointed place of duty
* average performance
* failure of physical training test

4.  On 30 October 1986, he accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his appointed place of duty on 21 October 1986.

5.  He was advanced to pay grade E-3 on 1 February 1987.

6.  On 9 June 1987, he accepted NJP under Article 15, UCMJ, for wrongfully using marijuana between 11 March and 9 April 1987.  

7.  He received counseling between June 1987 and February 1988 for the following:

* duty performance
* indebtedness
* failure to follow instructions 
* failure to be at his appointed place of duty
* conduct unbecoming a Soldier
* losing identification and meal cards
* disobeying a lawful order

8.  On 29 March 1988, he accepted NJP under Article 15, UCMJ, for being AWOL on 20 January 1988 and wrongfully using marijuana between 20 November and 28 December 1987.  

9.  On 29 April 1988, he received counseling for his repeated misconduct, unsatisfactory performance, and dismissal from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation, chapter 14, with a possible general discharge.

10.  A Report of Mental Status Evaluation, dated 17 May 1988, shows his behavior was found to be normal.  He was found to be fully alert and fully oriented.  His thinking process was clear and his thought content was normal.  His memory was good.  The evaluation did not find any presence of a psychotic thought process or major affective disorder.  He was psychologically cleared for any administrative proceedings deemed appropriate buy his the command.

11.  On 23 May 1988, the applicant’s company commander notified the applicant of proposed action to separate him under the provisions of Army Regulation 
635-200, chapter 14, paragraph 14-12c, for misconduct-abuse of illegal drugs based on two positive urinalysis incidents.  He advised the applicant of his rights and that he could receive a general discharge.

12.  On 13 June 1988, after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a general discharge and the results of the receipt of a general discharge.  He further acknowledged he could request an upgrade of a discharge which was less than honorable by making application to the Army Discharge Review Board (ADRB) or ABCMR; however, the act by either board did not imply that his discharge would be upgraded.  He waived his rights and elected not to submit a statement in his own behalf.    

13.  On 13 and 15 June 1988, the applicant’s company and battalion commanders recommended approval of the applicant’s discharge with the issuance of a general discharge.

14.  On 16 June 1988, the separation authority approved the applicant’s discharge and directed the issuance of a General Discharge Certificate.

15.  He was discharged accordingly in pay grade E-1 on 20 June 1988.  He was credited with completing 2 years, 9 months, and 1 day of active service.  His DD Form 214 lists in:

* Item 25 (Separation Authority) – Chapter 14, Army Regulation 635-200
* Item 28 (Narrative Reason for Separation) – Misconduct-drug abuse


16.  There is no evidence he applied to the ADRB within its 15-year statute of limitations for an upgrade of his discharge.

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 14-12c(2) – Soldiers would be separated for the commission of a serious offense such as the abuse of illegal drugs.  It provided that individuals identified as first time drug abusers, grades E-5 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could 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 was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.  The separation reason in all separations authorized by that paragraph would be "misconduct-drug abuse or abuse of illegal drugs."

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed a serious offense in that he used illegal drugs.  His company commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, based on two positive urinalysis incidents, with a general discharge.  He acknowledged the proposed separation action.  The separation authority approved his discharge and he was discharged accordingly on 20 June 1988.

2.  An honorable characterization is appropriate when the quality of a Soldier'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.  It appears that based on his overall record it was directed he receive a general discharge, as the characterization of service for this type of discharge was normally under other than honorable conditions.

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his general discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.

4.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an honorable discharge.

5.  In accordance with regulatory guidance, item 28 of his DD Form 214 lists the appropriate separation reason authorized for all separations under paragraph   14-12c.  Therefore, he is not entitled to a change of the reason for his separation.

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)                                         AR20140007655





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ABCMR Record of Proceedings (cont)                                         AR20140007655



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