RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 February 2007
	DOCKET NUMBER:  AR20060011475 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


x

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states that he has no ongoing substance abuse problems as his work history will indicate.

3.  The applicant provides two character references; an earnings record; and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 23 April 1987.  The application submitted in this case is dated 8 August 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 27 April 1983.  He completed basic training, advanced individual training, and basic airborne training.  He was awarded military occupational specialty 43E (Parachute Rigger).  He was promoted to sergeant on 10 January 1986.  The applicant was honorably discharged on 17 February 1986 for the purpose of immediate reenlistment.  

4.  The applicant reenlisted on 18 February 1986.  

5.  He tested positive for cocaine on 1 April 1987.

6.  On 1 April 1987, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200, paragraph 14-12 for abuse of illegal drugs.  He was advised of his rights.  

7.  The applicant acknowledged the notification, requested a conditional waiver, consulted with legal counsel, voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less than honorable or general.  He submitted statements in his own behalf; however, his statements are not available.  

8.  On 15 April 1987, the separation authority approved the recommendation for discharge with issuance of a General Discharge Certificate.

9.  The applicant was discharged on 23 April 1987 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct – drug abuse.  He completed 3 years, 11 months and 27 days creditable active service.  

10.  The applicant provided character references in support of his claim.  The individuals described him as being honest, dependable, straight-forward, sincere, knowledgeable, devoted, family-oriented, and a man who performed his job with integrity.  

11.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

13.  Army Regulation 635-200 governs the separation of enlisted personnel.  In pertinent part, it states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier'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.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant tested positive for cocaine.

2.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under chapter 14 for misconduct.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable discharge, but it was sufficient to warrant a general discharge.

3.  After review of the evidence of this case, it is determined that the applicant has not presented sufficient evidence which warrants changing his general under honorable conditions discharge to an honorable discharge.

4.  The applicant’s character references were noted.  However, they are not sufficiently mitigating to warrant relief in this case.

5.  The applicant has failed to show through the evidence submitted or the evidence of record that the character of service issued to him was in error or unjust.  Therefore, there is no basis for granting his request.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 April 1987; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 22 April 1990.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

x_____  x_____  x______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




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          CHAIRPERSON




INDEX

CASE ID
AR20060011475
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070227
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19870423
DISCHARGE AUTHORITY
A635-200, paragraph 14-12c
DISCHARGE REASON
Misconduct - drug abuse
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110.0000
2.

3.

4.

5.

6.