IN THE CASE OF: BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20150009458 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20150009458 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. IN THE CASE OF: BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20150009458 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 fully honorable. 2. The applicant states, in effect: * he was discharged for using drugs; he has now gone 30 years with no drug use or misconduct * he is active in his community and works to raise drug awareness * he is seeking government employment and upgrading his character of service will help 3. The applicant provides a certificate and two letters of support. 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 January 1986. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on two occasions: a. On 2 October 1986 for: * one charge and one specification of wrongful use of marijuana * one charge and one specification of possessing drug paraphernalia * one charge and one specification of wrongful possession of marijuana in the hashish form b. On 1 July 1987 for one charge and specification of wrongfully using marijuana. 4. On 14 July 1987, his company commander recommended the applicant be barred from reenlistment citing the two above NJP’s as the basis. The battalion commander approved this recommendation. 5. On 21 July 1987, his commander notified him he was being considered for separation under the provisions of paragraph 14-12c (Commission of a Serious Offense), chapter 14 (Separation for Misconduct), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for misconduct - use of illegal drugs. The commander stated the basis for the proposed separation was the two NJP’s (noted above). 6. On 21 July 1987, the applicant acknowledged receipt of notification of the commander's intent to separate him. He consulted with legal counsel on 22 July 1987, and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. The applicant: * waived consideration of his case by an administrative separation board and/or personal appearance before a board contingent on receiving a general discharge under honorable conditions * elected not to submit a personal statement in his own behalf * acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * understood he could be ineligible for many or all benefits as a Veteran under Federal and State laws in the event he was issued a discharge under other than honorable conditions 7. On 4 August 1987, the separation authority approved the applicant's discharge and directed the issuance of a general discharge. The applicant was discharged accordingly on 21 August 1987. 8. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12c, with a narrative reason showing misconduct - drug abuse. His service was characterized as under honorable conditions. He was awarded or authorized: * Army Service Ribbon * Aircraft Crewman Badge * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) 9. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 10. The applicant provides: a. A document titled Recognition of Completion for the discipleship program at Set Free San Diego, dated 2 January 2011. b. Two letters of support which essentially laud the applicant and affirm he is a responsible self-starter who has been a caretaker for Mr. RWD, and he has also been a vital part of a drug awareness program which was conducted in San Diego County (CA). REFERENCES: Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense (to include abuse of illegal drugs), and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was 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. DISCUSSION: 1. The applicant requests an upgrade of his general discharge to a fully honorable discharge. He states, in effect, he has reformed himself since he left the Army. 2. The evidence of record shows his separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights. The discharge proceedings were conducted in accordance with applicable laws and regulations at the time. 3. He offers letters of support and a certificate which indicate he has been a responsible member of society, and someone actively involved in his community with drug awareness programs. a. While significant, the characterization of service focuses exclusively on a period of active service. Periods before or after active duty are not considered when determining the characterization of service. In this case, the evidence of record supports he used illegal drugs during his active service and received appropriate disciplinary actions in response. b. Based on his use of these illegal drugs, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. There appears to be an insufficient basis upon which to grant the requested relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009458 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009458 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2