RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 August 2007
	DOCKET NUMBER:  AR20070004226 


	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

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. Michael Flynn

Chairperson

Mr. Larry Racster

Member

Mr. Donald Steenfott

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 that his discharge characterization be upgraded from general under honorable conditions to honorable.

2.  The applicant states that his discharge is inequitable and that it was based on one isolated incident in his 36 months of active federal service.

3.  The applicant did not provide supporting documentation. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 20 December 1985, the date of his discharge from the Regular Army.  The application submitted in this case is dated 13 February 2007.

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's records show he enlisted in the Regular Army on 13 January 1982.  He completed basic combat and advanced individual training and was awarded the military occupational specialty 12B (Combat Engineer).  The highest rank he attained while serving on active duty was sergeant/pay grade E5.

4.  The applicant's records do not show any significant acts of valor during his military service.

5.  On 13 September 1985, records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine, a controlled substance, on or about 17 July 1985.  He was sentenced to reduction to specialist/pay grade E4; forfeiture of $428.00 for two months (suspended to 13 March 1986), and 45 days extra duty.


6.  On 13 November 1985, the applicant's company commander initiated separation action against him for commission of a serious offense under the provisions of chapter 14-12(c) of Army Regulation 635-200 (Personnel Separations).  The specific reason for elimination consideration was the applicant tested positive for a controlled substance, cocaine, during a unit urinalysis test on 17 July 1985.  The applicant was a sergeant at the time of the urinalysis test. 

7.  On 13 November 1985, records show the applicant acknowledged his company commander's proposed separation action for commission of a serious offense, use of illegal drugs, and he consulted with legal counsel.  The applicant indicated that he understood that if he was separated that he could expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions.  The applicant submitted a personal statement to the separation authority asking for leniency and to be allowed to finish his term of service.  The applicant stated, in effect, that he accepted his punishment under the provisions of the UCMJ for wrongful use of a controlled substance, cocaine.  He further states he made one mistake and that he is not a drug addict nor did he feel he was a negative influence to other Soldiers in his company.  He asked that his chain of command allow him to complete his enlistment within his assigned company.  

8.  On 6 December 1985, the separation authority approved the company commander's request for discharge and directed that the applicant receive a General Discharge Certificate.  On 20 December 1985, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge or Certificate of Release or Discharge From Active Duty) the applicant was issued at the time of his discharge confirms he was discharged and his characterization of service was under honorable conditions.  This form further confirms that he completed a total of 3 years, 11 months, and 8 days of creditable active military service.

9.  Army Regulation 635-200 (Personnel Separations) 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.

10.  Army Regulation 635-200 (Personnel Separations), 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.

11.  Army Regulation 635-200 (Personnel Separations), 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 discharge should be upgraded because his separation was based on one isolated incident in his 36 months of active federal service.  He further contends that his discharge was not equitable. 

2.  The applicant's record shows he tested positive for a controlled substance, cocaine, which is a serious offense.  Commanders are required under the provisions of chapter 14-12(c) of Army Regulation 635-200 to initiate separation for Soldiers in the rank of sergeant who test positive for a controlled substance.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his commission of a serious offense and is warranted per regulatory guidance in effect at the time of his separation. 

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 December 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
19 December 1988.  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

__MF ___  __LR  ___  __DS ___  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.




_____   Michael Flynn________
          CHAIRPERSON




INDEX

CASE ID
AR20070004226
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070814
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.
144.01
2.

3.

4.

5.

6.