IN THE CASE OF:	  

		BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140009570 


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 general discharge (GD) to an honorable discharge (HD).

2.  The applicant states:

* his offense should have been covered under the Army’s limited use policy and not considered a serious offense
* many Soldiers received a less harsh penalty during the same time for the same offense
* at the time of his discharge limited use could not be proven
* he was under a new command
* sufficient time has passed to prove his claim of limited use
* he informed his command that he needed help and they gave him a urinalysis test
* he deserves to have his record reflect his hard work and devotion to the U.S. Army
* his record shows an inaccurate depiction of his entire career

3.  The applicant provides

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a self-authored statement
* a document titled "Limited Use Policy" 


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 7 March 1984.  After completing initial entry training, he was awarded military occupational specialty (MOS) 76V (Materiel Storage and Handling Specialist).  He was promoted to the rank of sergeant (SGT)/E-5 effective 17 April 1986.    

3.  On 25 March 1988, his company commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for commission of a serious offense.  The commander stated the reason for the proposed action was the applicant tested positive for the use of tetrahydrocannabinol (THC), the main ingredient found in marijuana and that he was recommending he receive a GD.  He also informed him of his rights.

4.  On 29 March 1988, he consulted with counsel who advised him of the basis for his contemplated separation action, its effects, and the rights available to him.  After consulting with counsel, he elected to submit statements in his own behalf and exercise his right to counsel.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a GD was issued to him.   

5.  In his statement to the commander he indicated, in effect, that he:

* was depressed due to personal problems with his wife
* lost control of himself and had suicidal thoughts after his wife told him she wanted a divorce
* starting using marijuana as a means to escape his problems
* decided to see the chaplain and he helped him to understand his problems
* would not be able to acquire the job he needed without an honorable discharge
6.  His company commander recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12c.  

7.  On 4 April 1988, the separation authority approved the separation recommendation and directed the issuance of a GD.  His DD Form 214 shows that on 12 April 1988 he was discharged in accordance with the separation authority's decision after completing 4 years, 1 month, and 6 days of net active service.

8.  The applicant's record is void of documentation or evidence showing he sought help from his chain of command for drug abuse or that he voluntarily submitted to a Department of Defense (DOD) or Army rehabilitation program prior to his positive urinalysis.  

9.  On 17 April 1992, the Army Discharge Review Board denied his request for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions (UOTHC) is normally considered appropriate.

	b.  Paragraph 3-7a provides that an HD 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.

11.  Army Regulation 600-85 (Army Substance Abuse Program (ASAP)), then in effect, defined the "Limited Use Policy."  

	a.  Paragraph 6-4 states that limited use prohibits the use by the government of protected evidence against a Soldier in actions under the Uniform Code of Military Justice or on the issue of characterization of service in administrative proceedings.  Additionally, the policy limits the characterization of discharge to honorable if protective evidence is used.  Protected evidence under this policy includes information concerning drug or alcohol abuse or possession of drugs incidental to personal use, including the results of a biochemical test, collected as a result of a Soldier’s emergency medical care solely for an actual or possible alcohol or other drug overdose.

	b.  Paragraph 10-12 states protected evidence includes drug or alcohol test results if the Soldier voluntarily submits to a DOD or Army rehabilitation program before the Soldier has received an order or has knowledge of a pending test to submit for a lawful drug or alcohol test.  This limited use protection will not apply to test results which indicate alcohol or other drug abuse occurring after the voluntary submission to the rehabilitation program.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his GD.

2.  Although a UOTHC discharge would normally have been appropriate, his chain of command recommended he receive a GD, which the separation authority approved.  

3.  His contention that the Army’s "Limited Use Policy” should have applied to his urinalysis results is found to be without merit.  The "Limited Use Policy” would have only applied if he had voluntarily submitted to a DOD or Army rehabilitation program before he received an order or had knowledge a pending test to submit for a lawful drug or alcohol test.  

4.  There is no evidence and he provides no evidence that shows the "Limited Use Policy" was applicable in his case.

5.  Considering all the facts in this case, his GD was appropriate.  The available evidence is an insufficient basis upon which to grant 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)                                         AR20140009570



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ABCMR Record of Proceedings (cont)                                         AR20140009570



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