RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 January 2008
	DOCKET NUMBER:  AR20070013456 


	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, in effect, his discharge characterized as under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was three months short of his expiration of his term of service when he was discharged.  He states he was young, immature, and that he made a bad decision.  He states that it has been 19 years since his discharge and he is now a law abiding patriotic citizen with a family.  He would like his service characterization rectified as he is proud of his military service. 

3.  The applicant did not provide any supporting documents 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 15 October 1986 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 91A (Medical Specialist).  The highest rank he held while on active duty was private first class/pay grade E-3.

3.  On 15 April 1987, records show the applicant was assigned to Headquarters and Headquarters Company (HHC), 52nd Engineer Battalion, Fort Carson, Colorado. 

4.  On four separate occasions the applicant was formally counseled and the counseling sessions were formally documented on DA Form 4856 (General Counseling Form) for failure to go to his appointed place of duty.  Records show the dates of counseling were on 19 October 1988, 22 November 1988, 30 November 1988, and 7 February 1989.  The applicant was also counseled on two occasions for writing checks on an account with insufficient funds.  The dates of counseling were 15 November 1988 and 1 December 1988. 

5.  On 20 February 1989, the results of the unit urinalysis that was conducted on 6 February 1989 show the applicant tested positive for cocaine.

6.  On 24 March 1989, the applicant accepted nonjudicial punishment under the provision of Article 15, Uniform Code of Military Justice for abuse of an illegal substance, cocaine.

7.  On 10 May 1989, the applicant's psychiatric examination shows that he met retention standards and that no psychiatric disease or defect was found to warrant disposition through medical channels.

8.  On 30 May 1989, the applicant waived his right to a separation physical medical examination.   

9.  On 13 June 1989, 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 - abuse of illegal drugs.  The commander further notified the applicant he was recommending the applicant receive a general discharge, under honorable conditions.  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.

10.  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.

11.  On 14 June 1989, 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 - drug abuse.  The applicant voluntarily requested personal appearance at an administrative separation board.  He requested consulting counsel to represent him throughout the separation process and he submitted a statement on his behalf.

12.  In the applicant's statement, dated 14 June 1989, he stated his use of illegal substances was experimental.  He stated that he understood the consequences of his one time misuse of an illegal substance.  He further stated that during a second unit urinalysis his urine tested negative for illegal substances.  He asked his chain of command for leniency and then to allow him to continue to serve on active duty until his expiration of his term of service.

13.  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.

14.  On 22 June 1989, the applicant's commander recommended him for discharge due to misconduct - abuse of illegal drugs.  The commander recommended a general discharge, under honorable conditions.

15.  On 27 June 1989, the applicant's intermediate commander recommended that the applicant be separated due to abuse of illegal drugs and that he receive an under other than honorable conditions characterization of service.

16.  On 13 July 1989, the appropriate authority approved the recommendation for discharge due to misconduct - abuse of illegal drugs and directed the applicant be issued a General Discharge Certificate.  

17.  On 21 July 1989, the applicant was discharged under the provisions of Chapter 14 of Army Regulation 635-200 due to misconduct - abuse of illegal drugs.  He had completed 2 years, 9 months, and 7 days of active service characterized as under honorable conditions.  

18.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 26 March 1991, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as general, under honorable conditions. 

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the 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 below E-5 may be processed after a first drug offense and must be processed for separation after a second 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.

20.  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.  He acknowledged that he made a mistake in judgment.  He further contends a discharge upgrade is warranted, as it has been 19 years since he was separated, that he was young and immature as the time of his separation, and that he is a patriotic citizen with a family. 

2.  The record of evidence shows the applicant did test positive for cocaine on one known occasion.  The applicant was advised of the effects of a general discharge and he did request appearance before a separation board.  However, the applicant did not have the minimum 6 years of service required for mandatory consideration by a separation board.  The applicant was afforded the opportunity to consult with counsel and he submitted a statement on his own behalf.  

3.  Evidence shows that the applicant was properly and equitably discharged in accordance with 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.  It is evident that the discharge authority and the applicant's chain of command apparently considered the applicant's service record based on the fact that he was not given the under other than honorable conditions discharge that was considered normal at that time for a chapter 14 discharge. 

4.  The applicant's post-service conduct is noted.  However, good post-service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

5.  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.