IN THE CASE OF:	  

		BOARD DATE:	  2 July 2015

		DOCKET NUMBER:  AR20140019501 


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 to a fully honorable discharge.

2.  The applicant states he was not aware of or introduced to this “substance” until he got to his permanent duty station.  One of the sergeants introduced him to the usage and techniques.  At the time of his incident, he thought it not to be safe to involve a noncommissioned officer (NCO).  He held a certain respect and appreciation for this NCO despite knowing the Army was against it. 

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.  The applicant's records show he enlisted in the Regular Army on 26 July 1985.  He was trained in and held military occupational specialty 91A (Medical Specialist).  

3.  He served in Germany from January 1986 to May 1988.  He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Expert Field Medical Badge, and Expert Marksmanship Qualification Badge with Rifle Bar. 

4.  On 28 April 1986, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using a controlled substance (marijuana).  His punishment consisted of a reduction to E-1. 

5.  On 26 October 1987, he again accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using a controlled substance.  His punishment consisted of a reduction to pay grade E-3, a forfeiture of pay, restriction and extra duty. 

6.  On 2 March 1988, the applicant's immediate commander notified him of his intent to initiate separation action against him for misconduct in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c by reason of commission of a serious offense.  The immediate commander recommended a discharge under honorable conditions.

7.  On 4 March 1988, 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  
8.  Subsequent to the applicant's acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to misconduct, commission of serious offense, in accordance with Army Regulation 635-200, paragraph 14-12c.  

9.  His intermediate commander recommended approval of the discharge action and a waiver of the rehabilitative transfer requirements.  He stated the applicant's continued use of the controlled substance (marijuana) disabled him from adequate performance of his duties and responsibilities.  He was afforded the opportunity to prove himself to this command after his first urinalysis; however this second offense left the command with no option but to eliminate him from the service.  He recommended his service be characterized as under honorable conditions (general).

10.  On 4 May 1988, subsequent to a review for legal sufficiency and consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge with his service characterized as under honorable conditions.  The applicant was discharged accordingly on 31 May 1988.

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged for misconduct, pattern of misconduct, abuse of illegal drugs, (Separation Code JKK), under the provisions of Army Regulation 635-200, paragraph 14-12c, with his service characterized as under honorable conditions.  He completed 2 years, 10 months, and 6 days of creditable active military service. 

11.  On 8 December 1992, the ADRB reviewed his discharge processing but found it proper and equitable.  Accordingly, the ADRB denied his petition for an upgrade of his discharge. 

12.  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 (wrongfully using an illegal substance).  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 and despite being afforded the opportunity to prove himself to his command after his first urinalysis; his second offense left the command with no option but to eliminate him from the service.  

4.  The applicant's service was not satisfactory and insufficiently meritorious to warrant an upgrade of his discharge.  Therefore, he is not entitled to an upgrade of his general discharge to a fully 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)                                         AR20140019501



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ABCMR Record of Proceedings (cont)                                         AR20140019501



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