IN THE CASE OF:	   

		BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20140014026 


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 conditions (general) characterization of service.

2.  The applicant states, in effect, that his separation was not warranted; the reduction in grade he received should have been sufficient.  He did not get the opportunity for rehabilitation, since he was separated while in rehabilitation.  

3.  The applicant provides, in effect, the entire contents of his official military personnel file (OMPF).

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 9 May 1986 and held military occupational specialty (MOS) 94B (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  The applicant's record contains a DA Form 2496 (Disposition Form), from the Drug Control Division to his commander, dated 28 February 1989, which informed his commander that the urine specimen he provided on 24 January 1989 tested positive for marijuana.  

4.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 6 March 1989, which documents a mental status evaluation he underwent at his commander's direction.  According to this form, the examining behavioral specialist noted that his behavior was passive, he was fully alert, fully oriented, his mood was anxious, his thinking was clear, his thought content was normal and his memory was fair.  The examining behavioral specialist indicated that the applicant had the mental capacity to understand and participate in separation proceedings, he was mentally responsible, he met retention requirements, and he was cleared for any administrative actions deemed appropriate by the command.

5.  On 17 March 1989, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), chapter 14, paragraph 14-12c(2) (Misconduct – Abuse of Illegal Drugs) for testing positive for marijuana on a random urinalysis.  The applicant acknowledged receipt of the notification that same day.

6.  On 29 March 1989, he underwent a separation physical, wherein he indicated on a Standard Form 93 (Report of Medical History) that his health was good.  

7.  On 30 March 1989, 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 also indicated he would submit a statement on his own behalf.

8.  His records contain the statement he submitted, wherein he stated he had been a really good Soldier with a moderate background for staying out of trouble and a working background that was truly excellent.  Until recently, he had never had an Article 15 or even a really bad counseling statement.  He had never been in serious trouble before.  He wanted to appeal the Article 15 he received so that his commander would know what type of Soldier he was and understand that he was not a regular drug user or abuser, he just made a mistake.  He did not think his punishment could get any worse by appealing his Article 15 but his situation had become worse and now, even though he did not want to get out of the Army, it appeared he would have no choice in the matter.  He did not feel that drugs had a place in the military or in his life and stated that drugs are for losers and that right now he was losing a lot.  He also stated that he had learned a valuable lesson and wondered how much more he would have to go through before the Army realized he learned his lesson.

9.  On 4 April 1989, the separation authority approved the discharge action under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2) and directed that he be discharged and issued a General Discharge Certificate. 

10.  He was discharged from the Army on 7 April 1989.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of "Misconduct – Abuse of Illegal Drugs" with a characterization of service of under honorable conditions (general).  

11.  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.

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.  This regulations state that abuse of illegal drugs was serious misconduct.  Separation action normally would be based upon commission of a serious offense.  However, relevant facts may mitigate the nature of the offense.  Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions of incidents of other misconduct and processed for separation, as appropriate.
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.  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)                                         AR20140014026



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ABCMR Record of Proceedings (cont)                                         AR20140014026



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