IN THE CASE OF: BOARD DATE: 23 August 2012 DOCKET NUMBER: AR20120000014 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 discharge under other than honorable conditions to an honorable discharge. 2. He states: * his record is not in error * he served his country for 6 years and 7 months 3. He 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 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 2 September 1981. 3. His record contains a DA Form 4436-R (Department of the Army Report of Result of Trial) which shows a trial by special court-martial held on 16 February 1988 reduced the applicant from sergeant/E-5 to private/E-1 for wrongful use of marijuana in October 1987. 4. On 23 March 1988, he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for abuse of illegal drugs. 5. On the same date, his company commander recommended his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, due to being found guilty of wrongful use of marijuana by a special court-martial on 16 February 1988. The commander also recommended waiver of the rehabilitative requirements. 6. On 30 March 1988, he acknowledged receipt of the proposed separation action against him and consulted with legal counsel. He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights. Subsequent to receiving this counseling, the applicant elected his rights to legal counsel and to submit a statement in his own behalf; however, there is no such statement in the available records for review. 7. On 18 and 20 April 1988, the battalion and brigade commanders recommended approval of his discharge under other than honorable conditions. 8. On 25 May 1988, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully using marijuana on or about 5 April 1988. 9. His record contains a DA Form 3822-R (Report of Mental Status Evaluation), undated. The examining physician determined he was mentally responsible and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 10. On 26 May 1988 after consulting with counsel, the applicant submitted a request to have his case considered by an administrative separation board because he had 6 or more years of active service. He opted not to submit statements in his own behalf. He attested he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person. He acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge under honorable conditions and that he would be ineligible to apply for enlist in the Army for a period of 2 years. 11. On 28 May 1988, he appeared in person before a board of officers who considered his testimony and all of the evidence presented in his case to determine whether he should be separated for commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c. As a result, the board determined the applicant was unacceptable for further retention in the military because of commission of a serious offense and recommended his separation under other than honorable conditions. 12. On 30 June 1988, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 13. On 20 July 1988, he was discharged accordingly. The DD Form 214 he was issued at the time shows in: a. item 12c (Net Active Service this Period) he completed 6 years, 10 months, and 19 days of creditable active service; b. item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) he was awarded the Army Service Ribbon, Army Good Conduct Medal (2nd Award), Army Achievement Medal, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16); c. item 24 (Character of Service) his characterization as "under other than honorable conditions"; d. item 25 (Separation Authority) the authority as "paragraph 14-12c, Army Regulation 635-200"; and e. item 28 (Narrative Reason for Separation) the reason as "misconduct/ abuse of illegal drugs." 14. On 25 February 1992, the Army Discharge Review Board disapproved the applicant's request for an upgrade of his discharge. 15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 provides for separation for various types of misconduct which include drug abuse and provides that individuals identified as drug abusers may be separated prior to their normal date of expiration of term of service. Action will be taken to separate a member for misconduct when it is 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. 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. c. 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 evidence of record confirms the applicant was discharged for misconduct/ commission of a serious offense which included one special court-martial and one NJP for wrongful use of marijuana. 2. The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time. There is no indication of procedural errors which would have jeopardized his rights. 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 his overall record of service. 3. Based on his record of indiscipline, the quality of his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel to warrant an honorable discharge. 4. In view of the foregoing, he is not entitled to 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 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) AR20120000014 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120000014 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1