RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060012918 


	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.


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	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, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states he served three terms from 1966 to 1968, from 1978 to 1982, and from 1978 (sic) to 1989.  He states the total time he was in the military he never had any serious charges brought against him.  He states his service had been honorable during that time.  He came up positive only one time and he was never given a chance for rehabilitation.  

3.  The applicant provides no additional documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 17 February 1989.  The application submitted in this case is dated 23 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 was inducted into the Army on 1 August 1966.  He completed the required training and was awarded military occupational specialty (MOS) 91A (Medical Corpsman).  He was honorably released from active duty on 1 August 1968.  On the following date, he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual) to complete his Reserve obligation.  He was honorably discharged from the USAR Control Group (Standby) on 31 July 1972.

4.  The applicant enlisted in the USAR on 17 May 1978.  He was ordered to active duty for training (ADT) on 18 August 1978.  He was honorably released from ADT on 1 December 1978 and was awarded MOS 92B (Medical Lab Specialist).  On the following date, he was transferred back to his Reserve unit.

5.  He was promoted to specialist five on 6 May 1980.

6.  The applicant was ordered to active duty on 7 July 1982 in the Active Guard Reserve (AGR).

7.  On 4 December 1987, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty.  His punishment consisted of a forfeiture of $140.00 for one month.  

8.  The applicant was barred from reenlistment on an unknown date.  The Certificate of Bar to Reenlistment is not available in the applicant’s personnel records.  In June 1988, he was counseled regarding his bar to reenlistment.  The commanding officer recommended the bar to reenlistment remain in effect.

9.  He tested positive for cocaine on 14 October 1988.  

10.  His personnel records contain a memorandum, dated 21 October 1988, which indicates he was released from the Primary Leadership Development Course on 21 October 1988 based on an academic reason.

11.  On 22 November 1988, the applicant accepted nonjudicial punishment under Article 15, UCMJ for wrongfully using cocaine between 10 October 1988 and 14 October 1988 and for being absent without leave (AWOL) from 26 October 1988 to 1 November 1988.  His punishment consisted of a reduction to E-4; a forfeiture of $519.00 pay per month for 2 months (one month of $519.00 suspended for 6 months); extra duty for 30 days; and restriction for 30 days.  He appealed the punishment.  His appeal was denied on 6 December 1988.

12.  On 12 December 1988, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200, paragraph 14-12c for commission of a serious offense.  He was advised of his rights.  

13.  The applicant acknowledged the notification, requested consideration of his case by an administrative separation board, consulted with legal counsel, and he did not submit statements in his own behalf.

14.  The administrative separation board convened on 24 January 1989.  The board recommended that the applicant be discharged from the service because of a pattern of misconduct with an UOTHC discharge.

15.  On 3 February 1989, the separation authority concurred with the Board’s findings and directed the applicant be discharged from the service under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - abuse of illegal drugs with issuance of an UOTHC discharge.
16.  The applicant was discharged from active duty in the AGR on 17 February 1989 under the provisions of Army Regulation 635-200, paragraph 14-12c based on misconduct – abuse of illegal drugs.  He completed 8 years, 6 months, and 25 days of creditable active service with 7 days of lost time due to AWOL.  He was transferred to the USAR Control Group (Reinforcement) on the following date.  He was discharged from the USAR on 28 February 1990.

17.  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.

18.  Army Regulation 635-200, paragraph 3-7a, 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).  

19.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
2.  The evidence of record shows the applicant tested positive for cocaine and was punishment under Article 15, UCMJ for this offense, and for being AWOL for 7 days.  He also received a bar to reenlistment.

3.  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 a general or an honorable discharge.  

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

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 February 1989; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 16 February 1992.  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
AR20060012918
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070327
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19890217
DISCHARGE AUTHORITY
AR635-200, paragraph 14-12c . . . . .  
DISCHARGE REASON
Misconduct - abuse of illegal drugs
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110.0000
2.

3.

4.

5.

6.