IN THE CASE OF:  	  

		BOARD DATE:  29 September 2015	  

		DOCKET NUMBER:  AR20150001866 


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 to an honorable discharge.

2.  The applicant states:

   a.  He believes his general discharge should be upgraded because his service was honorable.  He would like his discharge to reflect his actual military service.  At the time of his discharge he fought to receive an honorable characterization of service.  He was not aware he could request an upgrade of his discharge until someone mentioned it to him.  

   b.  He and some of his buddies had taken a weekend trip to Amsterdam while they were stationed in Germany.  While there they decided to smoke marijuana at one of the legal spots.  They knew it was legal there, but they weren't aware that it was against military law.  Sometime after returning from Amsterdam someone told the military authorities of their weekend trip.  A large investigation followed with many more Soldiers at the base becoming involved.  Some of the Soldiers that they didn't know were sent to prison for extended drug involvement.

   c.  Some of his buddies, who had committed the same offense as he, were not separated and some were.  He attempted to appeal his separation decision by stating he was a good Soldier, he wanted to remain in the Army, he had no disciplinary record, and that it would not happen again.  He requested another chance even though his appeal was denied.  In hindsight and even at the time, he believes he was mistreated compared to a few of his buddies who received another chance and were not separated for the same offense.

   d.  Since his discharge, he has graduated college, worked in the medical field for over 12 years as an ultrasound technician, has owned a small business, had two children, has owned a home, and has no criminal record.  He believes he has learned from his mistake.  He does not do drugs and believes he is a model citizen.  His discharge has been a burden hanging over him for many years and if only for peace of mind he is requesting an upgrade of his discharge.

3.  The applicant provides no 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 the cases 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.

2.  The applicant enlisted in the Regular Army in pay grade E-1 on 8 August 1996 for 3 years.  He completed training and was awarded military occupational specialty 12B (combat engineer).  He was advanced to pay grade E-3 on 7 October 1997.

3.  He served in Bosnia and Germany from 8 October 1996 through 2 December 1998.  

4.  A DA Form 3881 (Rights Warning Procedure/Waiver Certificate) dated 15 September 1998 shows the applicant was advised of his legal rights after a criminal investigation revealed he had wrongfully possessed, used, and distributed a controlled substance.

5.  In a Sworn Statement, dated 16 September 1998, he stated, in part:

   a.  He had been stationed in Germany since 1 December 1996.  Since then he had possessed, used, and distributed marijuana on several different occasions with numerous people throughout Germany.  On or about 15 August 1997, he drove to Amsterdam with two other Soldiers.  They arrived in Amsterdam late on Friday night and went to a coffee shop where one of the Soldiers purchased a joint.  They all smoked the joint passing it around four or five times for each person.  When they were finished smoking the joint, they went and walked around.  They all slept in the car that night.

   b.  The next morning they all went to the North Sea and then left late in the afternoon and drove back to Germany.  They arrived at Ledward Barracks late that night.  He didn't know if anyone brought anything back from Amsterdam.  The next time he smoked marijuana was later in the spring of that year in Chiemsee, Germany, where he and some Soldiers went by bus on some type of religious retreat.  They stayed at the Chiemsee Lake Hotel and smoked marijuana while they were there.  

   c.  The next time he smoked marijuana was about a week or so after Chiemsee.  He and another Soldier drove to Amsterdam and arrived late on a Friday night.  They went to a small coffee shop where another Soldier purchased a marijuana joint and then he and the Soldier smoked it there in the coffee shop. They left Amsterdam that day and returned to Schweinfurt later that night.  The next time he smoked marijuana was less than one month later with two Soldiers in one of the Soldier's room.

   d.  The next time he smoked marijuana was with another Soldier.  In the beginning of August that Soldier gave him about a half of gram of marijuana while they were in his room.  Another Soldier was also in his buddy’s room with his girlfriend, but they didn't see the other Soldier give him the marijuana.  He and that Soldier went into the bathroom and smoked the marijuana.  He didn't know where the Soldier got the marijuana from.

6.  On 2 November 1998, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for on multiple occasions wrongfully using marijuana between 1 December 1996 and 30 August 1998.  His punishment included a reduction to pay grade E-2, a forfeiture of $519.00 pay per month for 2 months, and 45 days of restriction and extra duty.  He did not appeal the punishment.

7.  He was reduced to pay grade E-2 on 2 November 1998.

8.  On 1 December 1998, the applicant’s commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel Separations), paragraph 14-12c(2), for commission of a serious offense.  She stated the reason for the proposed action was the applicant's wrongful use of marijuana on numerous occasions.  She recommended the applicant receive a general discharge and advised the applicant of his rights.

9.  On 3 December 1998 the applicant acknowledged receipt of the notification of separation and requested military counsel. 

10.  A DA Form 3822 (Report of Mental Status Evaluation), dated 9 December 1998 shows he was cleared for any administrative action deemed appropriate by the command.

11.  On 5 February 1999 he spoke with military counsel.  He acknowledged he could receive a general discharge and the results of the issuance of such a discharge.  He waived his rights and elected to submit additional matters.

12.  In his statement dated 5 February 1999 the applicant stated, in part:

   a.  In the past 2 years he had personal problems adjusting to military life and problems at home which he couldn't deal with.  All of this led to his wrong doings and he regretted it.  It was a "wake-up" call and he would fully strive to recover from it.  His noncommissioned officers knew he had a downfall, but they also knew that he would rehabilitate and he had already begun to do so.  They were willing to work with him.  He was and would continue to make sure he ceased any wrong doing so as not to bring anymore discredit to himself or the Army.

   b.  He wished someday to hold a higher position and help those in need before the situation became worse.  Learning from his downfall and his experiences thus far in the Army would benefit whomever he worked for.  His dedication, good work ethic and focus on mission completion would be a plus to any unit.  He was a Humvee driver for 1 year and was also well experienced in the M113A3.  He was a combat lifesaver, an expert rifleman, and a high physical fitness scorer.  He had begun increasing his knowledge by taking correspondence and college courses.  Finally his experiences in Bosnia, his training in several Hohenfels Training Area rotations and in other training areas in Europe, and his motivation toward recovery would benefit any Army unit.

13.  His separation was found to be legally sufficient by appropriate military trail counsel.

14.  On 24 February 1999, the separation authority approved the applicant’s discharge and directed the issuance of a general discharge.

15.  He was discharged accordingly in pay grade E-2 on 5 March 1999.  He was credited with completing 2 years, 6 months, and 28 days of net active service.  His service was characterized as under honorable conditions, general.  

16.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in part:

   a.  Paragraph 14-12c, Soldiers could be separated for the commission of a serious offense such as the misuse or abuse of illegal drugs.  It provided that individuals in pay grade below E-5 could be processed for separation after a first drug offense and would be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall records.

   b.  Paragraph 14-12c(2) (Abuse of Illegal Drugs), abuse of illegal drugs was serious misconduct.  The immediate and intermediate commanders would recommend separation or retention.  Recommendations would be made as to characterization of service. 

   c.  Paragraph 3-7a, an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant committed a serious offense.  Accordingly, his company commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.  The separation authority approved his discharge and directed the issuance of a general discharge.  He was discharged accordingly on 5 March 1999.

2.  It appears his overall record of service prior to the events which led to his Article 15 and subsequent discharge was the basis for his receiving a general discharge instead of an under other than honorable discharge which was normally considered appropriate for the misuse of illegal drugs.

3.  He provided no evidence or a convincing argument to show his discharge merited upgrading and his military records contain no evidence which shows exemplary service warranting an upgrade of his general discharge.  By his own admission, he risked his military career by wrongfully using illegal drugs and this misconduct clearly supports the ultimate discharge action taken.  His offenses diminished the quality of his service below that meriting a fully honorable discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  

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)                                         AR20150001866



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ABCMR Record of Proceedings (cont)                                         AR20150001866



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