IN THE CASE OF:	  

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140013914 


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 upgrade of his discharge.

2.  The applicant states he came up positive for cocaine on a random drug test.  He had never used cocaine.  After the test results he investigated and discovered that, while at a club, someone he thought was a friend bought him a drink and "planted" the cocaine.  This incident has caused an economic hardship on him and his family.

3.  The applicant provides no substantiating documents other than a DD Form 295 (Application for Discharge Review).

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 October 1977.  He completed training.  On 4 July 1981, he was promoted to sergeant, pay grade 
E-5.

3.  In May 1988, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for using marijuana.  The punishment included reduction to pay grade E-4 and forfeiture of $400 per month for 2 months and extra duty.

4.  On 29 November 1988, he received NJP for cocaine use detected by testing.  The punishment consisted of reduction to pay grade E-1 and a suspended forfeiture of pay.

5.  The applicant acknowledged, on 21 December 1988, that the company commander was contemplating recommending him for separation for misconduct for illegal use of cocaine. 

6.  The applicant consulted with counsel and waived his rights to have his case considered by a board of officer, to appear before such board, to be represented by counsel in any case and to submit statements in his own behalf.  He also indicated that he understood that he could expect to encounter substantial prejudice in civilian life because of the discharge and that he might be ineligible for various veteran benefits under state and/or Federal law.

7.  The applicant submitted his own statement to the effect that he was very remorseful for his actions that were leading to the end of the only profession that he had ever had or wanted.  He stated that his family was dependent upon him finding employment.  He thought he could succeed if given a second chance and asked for a general discharge to that end. 

8.  Six senior noncommissioned officers, a civilian instructor, and the company commander all submitted memoranda of support attesting to the applicant's work ethic and effectiveness.  However, none addressed the subject of retention or characterization o f the discharge.

9.  The chain of command recommended separation with a under other than honorable conditions discharge and the separation authority so directed.  

10.  On 17 February 1989, the applicant was separated under the provisions of Army Regulation 635-200, chapter 14.

11.  There is no indication the applicant applied to the Army Discharge Review Board within the 15-year period of eligibility.
12.  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.  The regulation in effect at the time stated individuals in pay grades E-5 and above could 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 have been processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.

	b.  Paragraph 3-7a states 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.

	c.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  There is no available evidence to substantiate the applicant's contention that the cocaine was planted in his drink.  Furthermore, he accepted NJP and went through the discharge process and never raised the issue.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with circumstances of his discharge.

3.  In view of the foregoing there is no 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)                                         AR20140013914





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140013914



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1