IN THE CASE OF: BOARD DATE: 14 December 2017 DOCKET NUMBER: AR20160016822 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. IN THE CASE OF: BOARD DATE: 14 December 2017 DOCKET NUMBER: AR20160016822 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :RCJ :DRA :DT DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14 December 2017 DOCKET NUMBER: AR20160016822 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 honorable conditions discharge. 2. The applicant states there was an error in the evidence regarding the urinalyses for drug use. He received a letter from The Adjutant General in that regard. 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Letter, dated 17 December 1980, from The Adjutant General * Letter, dated 26 May 1987, from the applicant to The Adjutant General 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 21 September 1967. He was trained in and held military occupational specialty 11E (Armor Crewman). He served in Korea from 22 February to on or about 27 August 1968. 3. On 21 June 1968, the U.S. Army Criminal Investigation Command submitted a Report of Investigation that revealed on 7 May 1968 during a search of the applicant's belonging a plastic pouch containing marijuana was discovered in the applicant's locker. He was charged with wrongful possession of marijuana. 4. On 12 July 1968, the applicant's immediate commander initiated a recommendation for separation against the applicant for unfitness under the provisions of paragraph 6(a) of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). He indicated the discharge action was recommended because the applicant was found to be a possessor and user of marijuana. It was recognized this offense constituted grounds for unfitness, for which an undesirable discharge may be issued, but, the applicant's military behavior had been sufficiently proper to warrant a general discharge. He added: * the applicant's performance had been characterized by minimal intelligence and adaptability; he had no desire to learn or work * his military superiors and the psychiatric examiner agreed that further rehabilitative efforts would be useless * he had been counseled on six different occasions by various members of his chain of command * a drug addiction or the unauthorized use or possession of habit forming drugs or marijuana is cause for discharge by reason of unfitness 5. The applicant's intermediate and senior commanders recommended approval of the discharge action with the issuance of a general discharge. 6. The separation authority approved the applicant’s discharge under the provisions of AR 635-212 by reason of unfitness and directed he be furnished a General Discharge Certificate. Accordingly, the applicant was discharged on 29 August 1968. 7. His DD Form 214 confirms he was discharged under the provisions of AR 635-212 with a separation program number (SPN) of 384 (unfitness). His character of service was under honorable conditions. He completed 11 months and 9 days of active service. He was awarded or authorized the: * National Defense Service Medal * Marksman Marksmanship Qualification Badge with Rifle Bar (M-14) 8. On 17 December 1980, The Adjutant General of the Army corresponded with the applicant and informed him that: a. On 27 November 1979, the United States District Court for the District of Columbia issued an order which required the Department of the Army to screen certain records systems and identify individuals separated for drug abuse. The military records of these individuals were to be reviewed to determine whether there was direct or indirect evidence of compelled urinalysis introduced by the government into the administrative discharge process which resulted in their separation with a less than fully honorable discharge. b. The review in his case did not reveal any evidence of compelled urinalysis involved in his separation. However, if he desired that a full discharge review be conducted in his case, he may do so by completing an appropriate request and forwarding it to a specific address to the Army Discharge Review Board. 9. He provides a letter, dated 26 May 1987, to The Adjutant General informing him that he had lost the form/application and he was prepared to take the next step to clear his name. He asked for another form. 10. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. AR 635-212, as then in effect, set forth the policy for administrative separation for Soldiers due to unfitness. It provided that Soldiers would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 2. AR 635-200 (Active Duty Enlisted Administrative Separations) provides 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. 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: 1. The evidence of record shows the applicant displayed a pattern of misconduct as evidenced by his use and possession of illegal drugs (marijuana). The regulation in effect at the time stipulated that drug addiction or the unauthorized use or possession of habit forming drugs or marijuana is cause for discharge by reason of unfitness. Accordingly, his chain of command initiated elimination action against him. 2. The applicant’s discharge proceedings were conducted in accordance with the law and regulations applicable at the time and his character of service is commensurate with his overall record of military service. 3. The separation authority determined the quality of his service appeared not have met the standards of acceptable conduct and performance expected of Army personnel, and did not rise to the level required for an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160016822 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160016822 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2