RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 November 2007
	DOCKET NUMBER:  AR20070009142 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Carmen Duncan

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 discharge. 

2.  The applicant states that he had a period of absence without leave (AWOL) due to the birth of what he thought was his daughter.  Her mother, who was a ward of the State of Pennsylvania, displayed a dangerous pattern to the health and wellbeing of the child.  He also adds that the test that identified him as positive for the THC drug was incorrect.  He also states that he informed his chain of command of his concerns but the officers he spoke with did not offer a solution to his domestic concerns.  He concludes that even when his problems took place, he was one of the best Soldiers in his unit and that he has since been a single parent and has conducted himself with a high character. 

3.  The applicant did not provide any 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 that he enlisted in the Regular Army on 28 August 1986 for a period of 4 years.  He completed basic combat training at Fort Jackson, South Carolina.  His records further show that while attending advanced individual training (AIT) for military occupational specialty (MOS) 93D (Flight Simulator Specialist) at Fort Gordon, Georgia.  He was reported AWOL during the period 3 April 1987 through 12 April 1987.   

3. The applicant’s records also show that while attending AIT at Fort Gordon, Georgia, he was counseled by his instructor and the course Noncommissioned Officer In Charge (NCOIC) about sleeping in the classroom.  

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 15 April 1987 for being AWOL during the period on or about 3 April 1987 to on or about 13 April 1987.  His punishment consisted of forfeiture of $300 pay for two months, 20 days of restriction, and
20 days of extra duty

5.  On 15 April 1987, the applicant was identified by the Fort Meade, Maryland, Drug Testing Laboratory to have tested positive for the THC drug during a urinalysis conducted on 12 March 1987.  He was referred to the Fort Gordon, Georgia, Community Counseling Center, Army Drug and Alcohol Prevention Control Program (ADAPCP).   

6.  On 17 April 1987, the applicant’s immediate commander initiated separation action against the applicant in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations) for acts or patterns of misconduct.

7.  On 17 April 1987, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.

8.  On 30 April 1987, the applicant’s intermediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(b) of Army Regulation 635-200.  The intermediate commander stated that the applicant had demonstrated no potential to be a productive Soldier and that all efforts to rehabilitate him failed.  He further added that there were indications that his acts of misbehavior would continue in the future.  He concluded by recommending a general under honorable conditions discharge.

9.  On 5 May 1987, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of patterns of misconduct and directed the applicant be furnished a General Discharge Certificate.  The DD Form 214 the applicant was issued at the time of his discharge confirms he was discharged on 11 May 1987 with a General (Under Honorable Conditions) characterization of service.  This form further confirms that he completed a total of 8 months and 4 days of creditable active military service and had 10 days of lost time due to AWOL.

10.  There is no history or indication in the applicant's records that he was undergoing any marital or domestic, or any indication that he raised such issues with his chain of command. 

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations. 

12.  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.

13.  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 contends that his discharge should be upgraded. 

2.  There is no evidence in the applicant's records that his domestic conditions contributed to his pattern of misconduct.

3.  The applicant's record of service shows that he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for being AWOL and tested positive during a drug test.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __cd____  __qas___  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.



							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070009142
SUFFIX

RECON

DATE BOARDED
20071114
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
19870511
DISCHARGE AUTHORITY
AR 635-200, Chap 14
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.