RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 October 2007
	DOCKET NUMBER:  AR20070007867 


	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. Rial D. Coleman

Analyst

The following members, a quorum, were present:


Ms. Susan A. Powers

Chairperson

Mr. Edward E. Montgomery

Member

Mr. Qawiy A. Sabree

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, an upgrade of his under other than honorable conditions discharge.   

2.  The applicant states that he was discharged for abusing narcotics, but he was never offered a program to help cure his addiction.  The applicant continues that his discharge has hindered his ability to progress in his career field.
 
3.  The applicant provides no additional documentary evidence in support of his application. 

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 records show he enlisted in the Army at the age of 18, on
26 December 1972 and served until his separation on 30 December 1974.  He completed basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded the military occupational specialty 91B (Medical Corpsman).  The highest rank he attained while serving on active duty was specialist-four/pay grade E-4.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  

3.  The record reveals a disciplinary history that includes nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five occasions for the following offenses:  12 June 1973, for being absent without leave (AWOL) for 21 days; 6 September 1973, for disobeying a lawful order; 29 May 1974, for being AWOL for four days; 14 August 1974, for being AWOL for 22 days; and 26 October 1974, for possession of dangerous drugs.
4.  On 8 November 1974, the record shows that the unit commander advised the applicant that if he was a drug experimenter, drug user, or drug addict, he may request amnesty and rehabilitation without being subjected to punitive action solely for drug abuse.  The applicant signed a record of counseling waiving his eligibility for amnesty and declining participation in the installation’s drug rehabilitation program.  On the same date, the unit commander recommended the applicant be discharged under the provisions of paragraph 13-5a(1) of Army Regulation 635-200 (Personnel Separations) because he was deemed unfit for continued service.

5.  On 22 November 1974, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he submitted a written statement.  In his statement, the applicant contends, in effect, that his duty performance was actually better than his commander had stated, he had not been afforded an opportunity to work in his primary specialty, and that he had previously requested amnesty and rehabilitation from his unit commander.  Additionally, he expressed the desire to receive a rehabilitative transfer to a duty station closer to his family and to be allowed to remain on active duty.  Finally, the applicant appealed to the separation authority to grant nothing less than an honorable discharge, in the event that the final decision was to separate him from service.

6.  On 6 December 1974, the unit executive officer wrote a response to the applicant’s written statement.  In this rebuttal, the executive officer indicated that the applicant did not request amnesty until after he was found to have illegal drugs in his possession on 7 November 1974.  The executive officer also reiterated the fact that on the following day, the applicant signed a statement, to the effect, that he waived amnesty and participation in the installation’s drug rehabilitation program.

7.  On 9 December 1974, the battalion commander signed a memorandum recommending that the applicant be eliminated from the service under the provisions of chapter 13, Army Regulation 635-200 and that he be considered unfit for any further service.  On 12 December 1974, the brigade commander signed a memorandum recommending approval of the battalion commander's request.

8.  On 16 December 1974, the separation authority directed the applicant's separation under the provisions of paragraph 13-5a(1) of Army Regulation 635-200 and that he receive an Undesirable Discharge Certificate.  The record shows that on 30 December 1974, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) issued to him at the time, confirms the applicant completed a total of 1 year, 10 months, and 18 days of creditable active military service and an under other than honorable conditions character of service.

9.  On 5 December 1979, the applicant submitted a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States).  On 28 July 1981, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

11.  Army Regulation 635-200, paragraph 3-7b, in effect at the time of the applicant’s separation, 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to an honorable discharge based on the fact that it was based solely upon drug use and that he was never afforded an opportunity for rehabilitation was carefully considered and determined to be without merit.

2.  Evidence of records shows that the applicant was given an opportunity to request amnesty and rehabilitation without being subjected to punitive action solely for drug abuse, but chose to decline both in writing.  The record also depicts a disciplinary history that includes being AWOL on three occasions, disobeying a lawful order, and possession of dangerous drugs.

3.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_SAP__  __EEM___  _QAW___  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.





__Susan A. Powers__
          CHAIRPERSON



INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.