BOARD DATE:	16 June 2015  

		DOCKET NUMBER:  AR20140018130 


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) discharge. 

2.  The applicant states:

	a.  While serving in the military he was a highly decorated Soldier for            10 years.  He earned more than 13 awards, including the airborne and air assault badges.  He was the go-to-person in all of his commands until one day he made a horrible mistake that changed the direction of his career.

	b.  He tried marijuana for the first time with a group of his Army buddies and the very next day they were all drug tested.  Never in his life has he regretted something more and been so ashamed.  He was reprimanded by his command, but because of his outstanding previous behavior his commander did not court-martial him.  Several of his buddies did get court-martialed, but he was spared.  Instead, he lost one grade of rank.  After he lost his grade, going from the rank/grade of sergeant (SGT)/E-5 to specialist (SPC)/E-4, he continued in the military for several more years before he decided not to reenlist.

	c.  He has since learned his lesson and has become a better person; however, he was recently denied the veterans homestead credit because his   DD Form 214 (Certificate of Release or Discharge from Active Duty) does not show he received an honorable discharge.  He is so sorry and has repented his wrong doings.  All he wants to do now is provide for his family and pay their property taxes.
3.  The applicant provides his DD Form 214 and a letter, dated 27 August 2014. 

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 5 February 1986, served through a series of extensions and reenlistments, and held military occupational specialty 71L (Administrative Specialist).  The highest rank/grade he attained while serving on active duty was SGT/E-5.

3.  His record contains a DD Form 2624 (Specimen Custody Document – Drug Testing), dated 31 January 1996, which shows his urine specimen tested positive for Tetrahydrocannabinol (THC).

4.  His record contains a DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 13 February 1996, which shows a Criminal Investigation Command (CID) special agent informed him that he wanted to question him about his suspected wrongful use and possession of the controlled substance, marijuana.  The applicant evoked his rights and indicated he wanted a lawyer.

5.  His record contains a DA Form 2823 (Sworn Statement), dated 26 February 1996, wherein Lieutenant Colonel (LTC) MLT stated she informed the applicant that his urine sample, collected on 5 January 1996, had tested positive for marijuana/THC.  Before making this notification, she informed him of his rights and told him she did not intend to ask him any questions other than whether or not he understood what she was telling him.  After reading him his rights and asking him if he understood, she asked the applicant if he had any questions.  The applicant then asked her how the sample could come back positive when he had never used marijuana.  She explained that she was no expert, but that she was of the understanding that the test was considered very reliable.  At this point, the applicant volunteered that he had been at a club called the Cotton Club on New Year's Eve.  While he was there, he noticed a funny smell like marijuana in the air, but he did not use the substance himself.  He wondered if that could make his test results positive for THC.  She told the applicant he should inform his attorney of that and any other matter he deemed relevant.

6.  His record contains a CID Agent's Investigation Report, dated 7 March 1996, which shows the investigation revealed there was probable cause to believe the applicant committed the offense of wrongful use of marijuana.

7.  His record contains a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 12 April 1996, which shows the applicant accepted nonjudicial punishment (NJP) for the wrongful use of marijuana and did not appeal his punishment that included a reduction in rank from SGT to SPC.

8.  His record contains a mental health consultation record, dated 24 April 1996, which documents the results of the applicant's pre-separation psychological assessment.  The assessing psychologist indicated that the applicant did not have any psychological or mental conditions.

9.  His record contains Standard Forms (SF) 88 (Report of Medical Examination) and 93 (Report of Medical History), dated 29 April 1996.  These reports indicate the applicant was in good health, with no indication he suffered from any medical conditions that warranted further disposition through medical channels.

10.  His immediate commander notified him on 28 June 1996 of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), paragraph 14-12c(2), by reason of misconduct – abuse of illegal drugs for testing positive for marijuana during a unit urinalysis collection.  The applicant acknowledged receipt of the notification memorandum the same day.

11.  On 3 September 1996, he consulted with legal counsel and 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.

12.  On 24 September 1996, the separation authority approved the discharge action under the provisions of Army Regulation 635-200, paragraph 14-12c(2) and directed that he be discharged and issued a General Discharge Certificate. 

13.  He was discharged from the Army on 18 October 1996.  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 under honorable conditions (general).

14.  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.

15.  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 regulation 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.  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.  Nevertheless, based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.
3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

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)                                         AR20140018130





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ABCMR Record of Proceedings (cont)                                         AR20140018130



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