IN THE CASE OF: BOARD DATE: 19 May 2010 DOCKET NUMBER: AR20090019451 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. 2. The applicant states he was not a drug “abuser” as described in his separation. He did briefly experiment with marijuana and then he was discharged. He has never had any other drug related charges since his separation. He submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) on 21 April 1998 and never got a response. 3. The applicant provides no additional documentation in support of his application. 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. His military records show that he enlisted in the Regular Army, in pay grade E-1, on 27 September 1982. He completed basic and advanced individual training and was awarded military occupational specialty 11B, Infantryman. 3. All the documents containing the facts and circumstances surrounding his discharge are not present in the available records. However, his records contained a copy of his DD Form 214 which shows that he was discharged in pay grade E-1 on 15 January 1986, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separation), paragraph 14-12c, for misconduct-drug abuse. His service was characterized as under other than honorable conditions. He was credited with completing 3 years, 3 months, and 19 days of net active service. 4. On 29 October 1998, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge. 5. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, 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. 6. Army Regulation 635-200, paragraph 14-12c(2), provided for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs. It provided that individuals identified as first time drug abusers, grades E-5 through E-9, would be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 could also be processed after a first drug offense and must 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 record. 7. Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there was doubt, it was to be resolved in favor of the individual. 8. Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization. DISCUSSION AND CONCLUSIONS: 1. His contentions have been considered; however, they do not support an upgrade of his discharge. It appears he tested positive for illegal drugs and that led to his discharge. His misconduct diminished the quality of his service below that meriting a general or fully honorable discharge. He has not provided evidence sufficient to mitigate his misconduct. He also has not shown error, injustice, or inequity for the relief he now requests. 2. It appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. In the absence of evidence to the contrary, Government regularity is presumed in the discharge process. 3. On 29 October 1998, the Army Discharge Review Board denied his petition for an upgrade of his discharge. A copy of this decision was mailed to the address listed on his DD Form 293. 4. In order to justify correction of a military record, he must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. He has failed to submit evidence that would satisfy this requirement. 5. In view of the foregoing, there is no basis for granting his 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 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) AR20090019451 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090019451 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1