BOARD DATE: 1 March 2011 DOCKET NUMBER: AR20100023121 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 upgrade of his general, under honorable conditions discharge (GD) to an honorable discharge (HD). 2. The applicant states on the DD Form 149 to see attached statement, but there was no attached statement. 3. The applicant does not provide any additional documents 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. The applicant’s record shows he enlisted in the Regular Army (RA) and he entered active duty on 30 January 1985. He was trained in, awarded, and served in military occupational specialty (MOS) 19E (M48-M60 Armor Crewman). The highest rank he attained while serving on active duty was Specialist (SPC). 3. On 5 December 1985, the applicant received a general counseling statement for a positive urine test result. 4. On 25 November 1986, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongful use of cocaine. 5. On 8 December 1986, the unit commander notified the applicant he was initiating separation action on him under the provisions of chapter 14-12c, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for drug abuse. The unit commander cited the applicant’s substance abuse as the basis for the action. 6. On 8 December 1986, the applicant was advised of his rights and he completed a statement waiving his right to a personal appearance before a board of officers. He elected not to submit a statement in his own behalf. 7. On 9 December 1986, the separation authority approved the applicant’s separation and directed he receive a General Discharge Certificate. On 22 December 1986, the applicant was discharged under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of misconduct – drug abuse. He completed a total of 1 year, 10 months, and 23 days of active service. 8. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. At the time, individuals in pay grades E-5 and above must have been processed for separation upon discovery of a drug offense. Those in pay grades below E-5 could have been 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 is normally considered appropriate. 10. Paragraph 3-7a of the same regulation provides that an HD 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention was carefully considered. However, there is insufficient evidence to support his request. 2. The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation. All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. 3. The applicant's record reveals a disciplinary history that includes a general counseling statement for being positive on a urine test, and an NJP for the wrongful use of cocaine. As a result, his record was not sufficiently meritorious to support the issue of an HD by the separation authority at the time of his discharge, nor is it sufficiently meritorious to support an upgrade of his discharge at this late date. 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) AR20100023121 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100023121 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1