RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 August 2007
	DOCKET NUMBER:  AR20070003516 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Bernard P. Ingold

Chairperson

Mr. Thomas M. Ray

Member

Mr. Gerald J. Purcell

Member

	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 discharge be upgraded to a general or an honorable discharge. 

2.  The applicant states, in effect, that his records are correct but he would like for his discharge to be upgraded since he has been living drug free for 16 years. 

3.  The applicant provides a copy of a memorandum subject:  Request for Conditional Waiver, dated 30 April 1991 and a copy of a DA Form 4187 (Personnel Action).  Both documents were part of the applicant's separation proceedings. 

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 military records show that he entered active duty on  
7 February 1978.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty  
11B1O (Infantryman).  The highest pay grade held was staff sergeant/pay grade E-6.

3.  Between 1 March 1991 and 17 May 1991 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for wrongfully using cocaine, and for stealing two hats, two shirts, and two bottles of perfume, a value of $92.00.

4.  On 30 April 1991, the applicant's commander recommended that the applicant be separated under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, commission of a serious offense for wrongful use of cocaine and Driving Under the Influence (DUI).

5.  The applicant consulted with legal counsel and was advised of the basis for the contemplated action to separate him for commission of a serious offense, under the provision of Army Regulation 635-200, Chapter 14-12c and its effect, of his rights available to him, and the effects of any action taken by him in waiving his rights.  He understood that he is entitled to have his case considered by an administrative separation board because he has six or more years of active or reserve service at the time of separation and being considered for a separation under other than honorable conditions.  The applicant submitted no statement on his own behalf, waived personal appearance before an administrative separation board, and waived representation by counsel.

6.  He further understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued and he understood that as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State Laws.  He may expect to encounter substantial prejudice in civilian life by reason of an Under Other Than Honorable Discharge.

7.  On 4 June 1991, the commander forwarded the recommendation for separation to the approving authority.  The approving authority appointed a board pursuant to Army Regulation 635-200, paragraph 14-12c to determine whether the applicant should be discharged for commission of a serious offense.

8.  On 2 October 1991, the board convened.  The applicant was found by preponderance of evidence to have wrongfully used cocaine and that he did receive a DUI.  The board recommended that the applicant be separated from the service under the provisions of Army Regulation 635-200, paragraph  
14-12c and that he was issued an under other than honorable discharge. 

9.  On 13 December 1991, the applicant was discharged.  The DD Form  
214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed a total of 13 years, 10 months, and 7 days of active military service and was reduced to private/pay grade E-1.

10.  The applicant applied to the Army Discharge Review Board (ADRB) on 
5 August 1995.  On 20 August 1997, ADRB reviewed the applicant's record and determined that his discharge was proper and equitable.  On that basis the applicant’s request for upgrade of his discharge was denied.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation 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.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  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 contends that his under other than honorable conditions discharge should be upgraded to a general or an honorable discharge.

2.  The evidence shows that the applicant tested positive for cocaine and had received a DUI.  Regulatory guidance provides for separation of Soldiers in the pay grade of E-5 and above upon discovery of drug abuse.  The applicant’s statement that he has been drug free for 16 years is noted.  However, his statement is not sufficient to mitigate a properly issued discharge.  Therefore, he is not entitled to an honorable or a general discharge.

3.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____bpi _  ____gjp__  ___tmr___  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.




_________Bernard P. Ingold_________
          CHAIRPERSON




INDEX

CASE ID
AR20070003516
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070830
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.