RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  4 December 2007
	DOCKET NUMBER:  AR20070010280 


	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:


Ms. Linda D. Simmons

Chairperson

Ms. Eloise Prendergast

Member

Mr. James Hastie

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 after completion of 10 years and 6 months of service his discharge should be changed. 

3.  The applicant provides no additional documentation 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 December 1995, with prior service in the United States Army Reserve (USAR).  He was trained as a food service specialist, in military occupational specialty (MOS), 92G.  He was promoted to sergeant (SGT/E-5) effective 1 December 2002.

3.  On 18 October 2004, the applicant tested positive for cocaine.

4.  On 22 November 2004, the applicant was punished under Article 15, under the UCMJ (Uniform Code of Military Justice), for the wrongful use of cocaine.  His punishment consisted of reduction to pay grade E-4, a forfeiture of $945.00 pay per month for 2 months (suspended), and 45 days of restriction and extra duty.





5.  On 17 February 2005, 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, for misconduct-drug abuse.  The commander based his recommendation on the applicant’s wrongful use of cocaine.  The applicant was informed that the intermediate commander and separation authority were not bound by the commanders recommendation.  The separation authority could direct that his service be characterized as honorable or general, under honorable conditions. 

6.  On 17 February 2005, the applicant acknowledged the commander's notification.

7.  On 14 March 2005, after consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

8.  The applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, misconduct-drug abuse.  

9.  The separation authority approved the recommendation for the applicant's discharge and directed that he be issued a general discharge.  

10.  The applicant was discharged on 1 April 2005, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct, in pay grade E-4.  He had completed 9 years, 3 months, and 8 days of creditable service, this period.  He had also completed 4 months and 21 days of total prior active service, and 1 year and 8 months of total prior inactive service.

11.  On 22 September 2006, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

12.  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.



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, 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 evidence of record shows that the applicant tested positive for cocaine and received an Article 15, under the UCMJ, for his misconduct.   

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

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 applicant states that he had completed 10 years and 6 months of service and his discharge should be changed.  The evidence shows the applicant had progressed through the ranks and had attained the rank of sergeant.  As a noncommissioned officer, he had an obligation to set a standard for his subordinates worthy of emulation.  By having tested positive for the use of cocaine, an illegal drug, he violated the trust and confidence his chain of command may have had in him and destroyed the confidence and credibility a leader must have in order to lead successfully.

5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to honorable.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief, he now seeks.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JRH___  __EP___  ___LDS__  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
AR200700010280
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071204
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
20050401
DISCHARGE AUTHORITY
AR 635-200, chapter 14-12c
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.

;