IN THE CASE OF:	  

		BOARD DATE:	  24 September 2015

		DOCKET NUMBER:  AR20150001811 


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 to an honorable discharge.

2.  He states he understands that what he did was wrong; however, at the time he was going through a very bad financial and marital situation.  He adds he turned to alcohol, but admits that the first time he used an illegal substance was about one week prior to the urinalysis test.  He states he realize now that he should have sought counseling for his personal problems.

3.  He 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 enlisted in the U.S. Army Reserve (USAR) on 22 February 1978.  He completed training and was awarded military occupational specialty (MOS) 76V (Storage Supplyman). 

3.  In a memorandum dated 20 July 1996, the applicant was notified by his company commander that separation action was being initiated to separate him from the USAR in accordance with Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) paragraph 7-11c, misconduct - abuse of illegal drugs.  He was advised that:

   a.  He had the right to consult with an appointed counsel or civilian counsel at his personal expense; to submit written statements on his behalf; to a hearing before an administrative separation board if he had 6 or more years of total active and/or reserve service at the time of separation; or he may waive his rights in writing. 
   
   b.  He was further advised that he had to acknowledge this memorandum within 30 calendar days of receipt.  Any statements he desired to submit on his behalf must reach the commander within 30 calendar days after receipt of the memorandum unless an extension was requested and granted.  Failure to respond within 30 calendar days would constitute a waiver of his rights. 
   
   c.  On 20 July 1996, the applicant acknowledged receipt of the notification memorandum.  This memorandum further shows that he was personally notified and failed to respond within the prescribed time period, thus waiving his rights. 

4.  On 16 September 1996, the company commander recommended that the applicant be separated from the USAR under the provisions of Army Regulation 135-178.  The commander stated the specific reason for his recommendation was the applicant tested positive for cocaine during a command directed urinalysis on 19 May 1996.

5.  On an unknown date, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 135-178, paragraph 7-11, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

6.  On 1 October 1996, he was discharged from the USAR under the provisions of Army Regulation 135-178, with a characterization of service listed as under other than honorable conditions.  

7.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  Army Regulation 135-178 provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  Paragraph 7-11c of the regulation, in effect at the time, governed separation for misconduct for disqualifying patterns or acts of conduct which included abuse of illegal drugs.  
   
   a.  Paragraph 2-9a provides an honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standard of acceptable conduct and performance of duty for Army Personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  An honorable characterization may only be awarded a Soldier upon completion of his or her service obligation.

	b.  Paragraph 2-9b provides that if a Soldier’s service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions.  Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier’s conduct or performance of duty outweigh positive aspects of the Soldier’s military record.
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows he tested positive for cocaine usage during a command directed urinalysis on 19 May 1996.  He was notified in writing that he was being considered for discharge due to misconduct – abuse of illegal drugs, and separation action was being initiated by his chain of command.

2.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects the misconduct that resulted in his discharge.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  

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)                                         AR20150001811



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ABCMR Record of Proceedings (cont)                                         AR20150001811



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