RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 August 2007
	DOCKET NUMBER:  AR20070005407 


	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. Joyce A. Wright

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 general discharge, under honorable conditions, be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he has been out of the Army for 17 years.  Since his discharge, he has remained employed with one company (16 years) and has achieved management positions.  In addition, he is currently receiving a BA (Bachelor of Arts) in sociology. 

3.  The applicant provides as copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request. 

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 on 24 September 1987.  The applicant successfully completed basic combat training at Fort Jackson, South Carolina, and advanced individual training at Fort Gordon, Georgia.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 31K, Combat Signaler.  He was advanced to pay grade E-4 on 1 July 1989.

3.  On 7 August 1989, the applicant tested positive for cocaine.

4.  On 4 October 1989, the applicant was punished under Article 15, under the UCMJ (Uniform Code of Military Justice), for wrongful use of cocaine.  His punishment consisted of reduction to pay grade E-1 (suspended to pay grade   E-3), a forfeiture of $350.00 for 1 month, and 45 days restriction and extra duty.


5.  On 21 November 1989, the applicant was punished under Article 15, under the UCMJ, for breaking restriction.  His punishment consisted of a forfeiture of pay, 45 days restriction and extra duty, and a verbal reprimand.

6.  On 22 November 1989, the applicant was barred from reenlistment.

7.  On 28 December 1989, the applicant's commander advised the applicant he was taking action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), for misconduct-abuse of illegal drugs.  He based his recommendation on his wrongful use of cocaine.  The commander informed the applicant that the least favorable characterization of service he could receive would be under other than honorable conditions. 

8.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

9.  On 8 January 1990, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c(2), misconduct-abuse of illegal drugs.  

10.  The separation authority approved the recommendation for the applicant's discharge on 22 January 1990 and directed that he be issued a general discharge.  

11.  The applicant was discharged on 31 January 1990, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), for misconduct-abuse of illegal drugs.  He had completed 2 years, 4 months, and 7 days of creditable service.

12.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his general discharge on 4 November 1993.  On 13 August 1997, the ADRB determined the characterization of service was proper and that the reason for discharge was inequitable, and voted to change it to "misconduct."

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes 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 will be taken to separate a member for 
misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

14.  Paragraph 14-12c(2) provides for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs.  It also provides that individuals identified as first time drug abusers, grades E-5 through E-9, will be processed for separation upon discovery of a drug offense. 

15.  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, 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.

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 type of discharge directed and the reasons therefore were appropriate
considering all of the facts of the case.

3.  The applicant has provided no evidence to show that his discharge was unjust.  He also has not provided any evidence to mitigate the character of his discharge.

4.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for misconduct-abuse of illegal drugs and was issued a general discharge, under honorable conditions.

5.  The evidence shows that the applicant applied to the ADRB for an upgrade of his discharge.  The ADRB determined that the characterization of his service was proper and that his reason for discharge was inequitable.  The ADRB voted to change it to "misconduct."  However, he is now requesting that the characterization of his discharge be change to, "honorable."  


6.  The applicant contends that it has been over 17 years since his discharge, that he has been with one company for 16 years, that he has achieved management status, and that he is currently receiving a BA degree in sociology.  However, he has provided nothing to support his report of achievements and good post-service conduct.  Alleged good post service conduct is not sufficient as a basis to change the characterization of his discharge from under honorable conditions (general) to honorable conditions, particularly in view of his misconduct offense. 

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_BI_____  __GP____  ___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
AR20070005407
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070830
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19900130
DISCHARGE AUTHORITY
AR 635-200, chapter 14-12c(2)
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.