RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 January 2008
	DOCKET NUMBER:  AR20070012762 


	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. John Infante

Chairperson

Mr. Eric N. Anderson

Member

Mr. David K. Haasenritter

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 be upgraded to honorable from under other than honorable conditions.

2.  The applicant states, in effect, that he would like his discharge upgraded to reflect the honorable time that he served during his enlistment period.  He states he understands that he made mistakes during the last 90 days of his enlistment period.  He would like his honor restored and to serve his country in the Army National Guard (ARNG).

3.  The applicant provides no additional 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 military records show he enlisted on 8 February 1984.  He successfully completed basic combat and advanced individual training.  He was awarded the military occupational specialty 67N (Utility Helicopter Repairer).  The highest rank he attained was sergeant/pay grade E-5.

3.  On 1 May 1990, the applicant was assigned to the United States Army Davison Aviation Command at Fort Belvior, Virginia.

4.  On three separate occasions the applicant was formally counseled and the counseling sessions were documented on DA Form 4856 (General Counseling Form) on 30 May 1991, for financial indebtedness; on 25 February 1992, for continued indebtedness and recurring domestic disputes that occurred in government quarters; and on 3 April 1992, for failure to repair.  

5.  On 14 August 1991, the applicant received a letter of reprimand from his company command for using his Diners Club Government Card for personal use. He acknowledged receipt of the letter of reprimand on 16 August 1991 and he did not submit a rebuttal statement or substantiating documents on his behalf. 

6.  On 18 October 1991, records show the applicant was terminated from the Army Community Services Financial Counseling Program at Fort Belvoir for failure to cooperate with the stated personal financial goals and objectives of the program; specifically, to remit payments to creditors and to attend command directed financial management counseling sessions. 

7.  On 9 December 1991, that applicant received a Bar to Reenlistment from his company commander.

8.  On 24 January 1992, the applicant received a warning letter from the post deputy commander, which stated that he was involved in a domestic disturbance with his wife at his government quarters and that such conduct reflects disregard for the community standard expected of Soldiers and their family members who reside on military installations.

9.  On 30 January 1992, the applicant's company commander moved him temporarily to the company barracks, referred him to Social Work Services, and referred him to the Army Drug and Alcohol Abuse Prevention and Control Program.  

10.  On 6 February 1992, the Fort Belvoir Family Advocacy Case Management Team determined that the evidence presented substantiated mutual spouse abuse.  The Team reported the incident to the United States Army Central Registry at Fort Sam Houston and recommended that the applicant obtain marriage counseling.

11.  On 12 February 1992, the applicant and his spouse agreed to become involved with the Family Advocacy Program and consented to counseling sessions and said that they would collectively demonstrate the motivation to change their behavior.

12.  On 12 March 1992, the applicant's company commander during a review of the applicant's Bar to Reenlistment, which was imposed on 9 December 1991, upheld his original decision to bar the applicant from reenlisting in the Regular Army.

13.  On 7 April 1992, the applicant's company commander ordered, in writing, the following directives to the applicant: 

     a.  restricted his access to his government family quarters to greater than 100 yards;

     b.  revoked off post privileges without the specific approval of the company first sergeant; 

     c.  directed no visits with his spouse and children without the direct supervision of his chain of command; and

     d.  strongly encouraged him to leave his personally owned vehicle in the possession of his spouse so she could provide transportation to his children.

14.  On 23 April 1992, the results of a company urinalysis show that the applicant tested positive for tetrahydrocannabinol (THC) on 3 April 1992. 

15.  On 24 April 1992, the applicant waived his rights and admitted to using marijuana in a self-authored statement on a DA Form 2823 (Sworn Statement) . 

16.  On 28 April 1992, the applicant was found to be physically and mentally qualified for administrative separation.  The medical evaluation report shows that the applicant had no significant mental illness, that he was mentally responsible, that he could distinguish right from wrong, that he was able to adhere to the right, and that he had the mental capacity to understand and participate in board proceedings.

17.  On 29 April 1992, the commander of the aviation command, a colonel, issued an administrative letter of reprimand to the applicant for wrongful possession and use of a controlled substance, specifically marijuana.  The applicant acknowledged receipt of the letter of reprimand and stated he understood the unfavorable information presented against him.  He elected not to submit statements or documents in rebuttal to the letter of reprimand.

18.  On 14 May 1992, the applicant's commander notified him that he was initiating action to discharge him under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) due to misconduct-rehabilitative failure.  The commander further notified the applicant he was recommending the applicant receive an other than honorable discharge.  However, the separation authority may direct that the applicant's service be characterized as honorable; general, under honorable conditions; or under other than honorable conditions.
19.  The commander advised the applicant of his right to have his case considered by a board of officers (if he had 6 or more years of total active and reserve service or an under other than honorable conditions recommendation is made by the separation authority), to appear in person before a board of officers, to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge, and request his case be presented before a board of officers.

20.  On 14 May 1992, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of chapter 14 of Army Regulation 635-200 for misconduct.  The applicant waived consideration by an administrative separation board and to personally appear before said board.  He acknowledged that he had been advised of his right to submit a conditional waiver of his right to have his case considered by an administrative separation board.  He requested military consulting counsel to represent him throughout the separation process.  

21.  The applicant also acknowledged that, as the result of issuance of a general discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life. He also acknowledged that he understood that if he received a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

22.  In the applicant's self-authored statement, dated 19 May 1992, he states, in effect, that he has served honorably for the past 8 years and that he received four Army Commendation Medals, three Army Achievement Medals, and two Good Conduct Medals, which he submitted as evidence.  He states, in effect, that he is not proud of the chain of events that led to his commander recommending him for separation.  He states he had been under a great deal of stress and that he had a lapse in judgment.  In his statement, he requested an honorable discharge so he could support his wife and children.

23.  On 18 May 1992, the applicant's company commander recommended him for discharge due to misconduct; specifically, for rehabilitation failure and said that further rehabilitation was impracticable.  

24.  On 21 May 1992, the applicant's brigade commander recommended that the applicant be separated due to misconduct-abuse of illegal drugs and that he receive an other than honorable discharge.

25.  On 27 May 1992, the appropriate authority in the rank of major general approved the recommendation for discharge due to misconduct - abuse of illegal drugs and directed the applicant be issued an under other than honorable discharge.  

26.  On 5 June 1992, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct - abuse of illegal drugs.  The DD Form 214 he was issued on this date shows he had completed 8 years, 3 months, and 28 days of active federal service and that his characterization of service was under other than honorable conditions.  

27.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

28.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this 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.  Those in pay grades E-5 to E-9 will be processed for separation upon discovery of a drug offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

29.  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.

30.  Army Regulation 635-200, 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.

31.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to reflect his honorable service prior to his misconduct.  He further contends a discharge upgrade would allow him to enlist in the ARNG and that his honor would be restored to him and his family.

2.  The evidence of record shows the applicant was a noncommissioned officer with over eight years of creditable active federal service at the time of his separation.  Records show he had a history of financial mismanagement to include indebtedness, that he abused alcohol, that there was a history of mutual spouse abuse, and that he tested positive and then admitted using marijuana on one known occasion.  The applicant received numerous general counseling statements for his indebtedness, a bar to reenlistment was imposed, and his records show he received a letter of reprimand from a superior commissioned officer.  Records further show the applicant was released from the Army Community Services Financial Counseling Program for lack of compliance with the program's stated objectives and his continued indebtedness.  He also entered the post Army Drug and Alcohol Abuse Prevention and Control Program and the Family Advocacy Program and declared a rehabilitative failure in both programs.

3.  The applicant was advised of the effects of a general or lesser discharge.  He did not request an appearance before an administrative separation board, which he was entitled to at the time of his separation.  The applicant was afforded the opportunity to consult with counsel and he submitted a self-authored statement with no supporting documentation to the separation approval authority.  The applicant's record does show he did receive formal recognition for his meritorious achievement in the performance of his duties and for his service on seven separate occasions.

4.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.   

5.  The applicant's desire to honor his family name was noted.  However, the passage of time and a difficult marriage are not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JI        _  __ENA__  __DKH__  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.





____John Infante    _____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080131
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.