BOARD DATE: 8 March 2018 DOCKET NUMBER: AR20160004595 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. 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. BOARD DATE: 8 March 2018 DOCKET NUMBER: AR20160004595 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING ::x :x :x DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 March 2018 DOCKET NUMBER: AR20160004595 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 under honorable conditions (general) discharge be upgraded to an honorable discharge and amendment of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 18 June 1997 to show a different narrative reason for separation. 2. The applicant states he is requesting the upgrade in order to clear his record. He knows he made a mistake, but he believes he has shown he no longer makes stupid mistakes and all of his previous Army records are exemplary. He believes that if you do the crime, you should do time, but he hopes the Board can find it in its heart to help him. He is asking for help bringing back to him the last and only part of his life where he did wrong. The Army and his daughter are the best two things he has done in his life. 3. The applicant provides his DD Forms 214 for the periods ending 9 March 1984 and 18 June 1997. 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. Having had prior honorable enlisted service from 10 March 1981 to 9 March 1984, the applicant enlisted in the Regular Army on 28 November 1990. He was promoted to the rank/grade of sergeant (SGT)/E-5 effective 1 September 1992. He reenlisted on 11 January 1995. 3. The applicant accepted nonjudicial punishment (NJP) on 30 December 1996, under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana, the use of which was detected by urinalysis testing. The punishment consisted of reduction to the rank and grade of specialist/E-4 and an oral reprimand. 4. The applicant's immediate commander informed him on 30 April 1997 of his intent to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for wrongful use of marijuana, with an under other than honorable conditions characterization of service. The applicant was also advised of his right to consult with legal counsel, request a hearing before an administrative separation board, and to waive his rights in writing. 5. The applicant consulted with legal counsel on 12 May 1997 and was advised of the basis for the contemplated separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct. He voluntarily waived consideration of his case by an administrative separation contingent upon receiving a characterization of service no less favorable than under honorable conditions (general). He also elected not to submit a statement in his own behalf. He acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him. He also acknowledged he understood that if he received a character of service of less than honorable, he may apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge; however, he realized that an act of consideration by either board did not imply his discharge would be upgraded. 6. The appropriate separation authority approved the recommendation for separation on 22 May 1997, under the provisions of Army Regulation 635-200, paragraph 14-12c, with service characterized as under honorable conditions (general). 7. The applicant was discharged accordingly on 18 June 1997. His DD Form 214 shows the characterization of his service as under honorable conditions (general) and his narrative reason for separation as "Misconduct." 8. There is no evidence that indicates the applicant applied to the ADRB for an upgrade of his discharge. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. The regulation in effect at the time stated individuals in pay grades E-5 and above could 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 have been processed for separation after a second offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate. DISCUSSION: 1. The evidence of record shows the applicant tested positive for marijuana use. As a result, NJP was imposed against him. Based on the applicant's serious offense, his commander initiated separation actions against him. 2. The applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct was administratively correct and in conformance with applicable laws and regulations in effect at the time. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The separation authority determined his service would be characterized as under honorable conditions (general). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160004595 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004595 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2