IN THE CASE OF: BOARD DATE: 11 October 2012 DOCKET NUMBER: AR20120007049 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 his general discharge be upgraded to honorable. 2. The applicant provides no explanation. 3. The applicant provides no documentary 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 13 July 1982 for a period of 4 years. He completed his training and was awarded military occupational specialty 11B (infantryman). He attained the rank of specialist four on 1 June 1984. 3. DA Forms 2496 (Disposition Form) show he tested positive for marijuana on: * 6 November 1985 * 12 December 1985 4. On 11 March 1986, nonjudicial punishment (NJP) was imposed against him for using marijuana. 5. On 13 April 1986, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct (commission of serious offense). The unit commander cited he had tested positive on 2 urinalysis tests. 6. On 15 April 1986, he consulted with counsel and acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued. He also elected not to submit a statement on his own behalf. 7. On 24 April 1986, the separation authority approved the recommendation for discharge and directed the applicant be discharged under honorable conditions (a general discharge). 8. He was discharged under honorable conditions on 5 May 1986 under the provisions of Army Regulation 635-200, paragraph 14-12d, for misconduct (drug abuse). He completed a total of 3 years, 9 months, and 23 days of creditable active service. 9. There is no evidence in the available records that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense. The regulation states that abuse of illegal drugs is serious misconduct. The issuance of a discharge under other than honorable conditions is normally considered appropriate. 11. Army Regulation 635-200, 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. DISCUSSION AND CONCLUSIONS: 1. The applicant’s record of service included one NJP for using marijuana. As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. There is insufficient evidence to warrant an honorable discharge. 2. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case. 3. In view of the foregoing, there is no basis for granting the applicant's request. 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) AR20120007049 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120007049 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1