IN THE CASE OF:  	  

		BOARD DATE:  7 May 2015	  

		DOCKET NUMBER:  AR20140017679 


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 other than honorable conditions discharge.

2.  The applicant states the objective here is to get his Department of Veterans Affairs benefits.  He was given a discharge due to a positive urinalysis.  He contends he did not ingest illegal drugs.  He had been in the same room where others were.  He has not had any drugs issues since discharge.  He is a different person now. 

3.  The applicant does not provide any additional evidence. 

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.  Having had prior service in the Army National Guard, the applicant enlisted in the Regular Army on 7 April 1981.  He was trained in and held military occupational specialty 76V (Materiel Storage and Handling Specialist). 

3.  He served in Hawaii from April 1981 to around April 1984.  He was awarded or authorized the Army Service Ribbon, Army Achievement Medal, Army Commendation Medal, and the Overseas Service Ribbon.

4.  On 19 April 1985, at Fort Lee, VA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave from 1 to 2 April 1985.

5.  On 23 September 1985, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully introducing marijuana with intent to distribute.  He was reduced to E-3 and forfeited some pay. 

6.  On 19 December 1985, he participated in a unit urinalysis and his urine sample tested positive for marijuana.

7.  On 22 January 1986, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana.

8.  On 22 January 1986, the applicant's immediate commander notified him of his intent to initiate separation action against him for misconduct – pattern of misconduct in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b and/or 14-12c.  The immediate commander cited the applicant's wrongful use, possession, and conspiracy to distribute marijuana and recommended a discharge under other than honorable conditions.

9.  On 23 January 1986, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently 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 of the procedures/rights available to him.  He waived consideration of his case by an administrative separation board and/or personal appearance before a board contingent and he elected not to submit a statement in his own behalf.  He acknowledged he:

* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions
* understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade; but, he understood that an act of consideration by either board did not imply his discharge would be upgraded  

10.  Subsequent to the applicant's acknowledgement and consult with counsel, his immediate commander initiated separation action against him due to misconduct – pattern of misconduct and the commission of serious offense in accordance with Army Regulation 635-200, paragraph 14-12b and 14-12c.  

11.  His intermediate and senior commanders recommended approval of the discharge action and a waiver of the rehabilitative transfer requirements.  Each commander recommended his service characterized be under other than honorable conditions.

12.  On 25 February 1986, subsequent to a review for legal sufficiency, the separation authority approved the applicant's discharge, with his service characterized as under other than honorable conditions.  The applicant was discharged accordingly on 27 February 1986.

13.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged for misconduct, pattern of misconduct (Separation Code JKM), under the provisions of Army Regulation 635-200, paragraphs       14-12b and 14-12c, with his service characterized as under other than honorable conditions.  He completed 4 years, 10 months, and 20 days of creditable active military service and he had 1 day of lost time. 

14.  In December 1988, the ADRB reviewed his discharge processing.  As a result of that review:

	a.  On 19 December 1988, he was issued a DD Form 215 (Correction to DD Form 214) that corrected the narrative reason for his separation from "misconduct, pattern of misconduct" to "misconduct-commission of a serious offense" and his Separation Code from JKM to JKQ. 

	b.  On 21 December 1988, the ADRB notified him that his discharge processing was  proper and equitable.  Accordingly, the ADRB denied his petition for an upgrade of his discharge. 

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	a.  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.

	b.  Paragraph 3-7b provides that 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.  The applicant's records show he committed a serious offense (wrongful use, possession, and conspiracy to distribute marijuana).  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  His discharge was appropriate because the quality of his service was not consistent with acceptable personal conduct and performance by Army personnel.  His misconduct and failure to respond positively to counseling by members of his chain of command diminished the quality of his service.

3.  The evidence of record clearly shows that despite counseling and NJP action for a drug-related offense in September 1985, the applicant continued to abuse drugs.  He tested positive on a urinalysis few months later.  These are not the qualities of a good Soldier. 

4.  The applicant's service was not satisfactory and insufficiently meritorious to warrant an upgrade of his discharge.  Therefore, he is not entitled to the 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)                                         AR20140017679





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ABCMR Record of Proceedings (cont)                                         AR20140017679



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