RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 March 2008
	DOCKET NUMBER:  AR20070015005 


	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.


x
	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 general under honorable conditions discharge be upgraded to an honorable discharge.  

2.  The applicant states that his discharge is unjust because it has been on his records for 15 years.  He would like to move forward to better himself and find other jobs to expand his career.  

3.  The applicant provides no additional 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 enlisted in the Regular Army on 19 October 1988 for a period of four years.  He completed one station unit training at Fort Sill, Oklahoma and was awarded military occupational specialty 13B (cannon crewmember).  He was assigned to Germany in February 1989 and served in Southwest Asia from December 1990 to April 1991.  He was promoted to specialist on 1 April 1991.

3.  On 10 August 1992, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using cocaine between on or about 29 May 1992 and 29 June 1992.  His punishment consisted of a reduction to private, E-1; a forfeiture of $392.00 for 2 months (suspended); 45 days of extra duty; and 45 days restriction.  The applicant appealed the punishment.  The appeal was denied on 19 August 1992.  

4.  On 8 September 1992, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - commission of a serious offense, abuse of illegal drugs. He was advised of his rights.  

5.  The applicant acknowledged notification of the separation action, consulted with legal counsel, waived consideration of his case by an administrative separation board, and did not submit statements in his own behalf.

6.  On 10 September 1992, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - commission of a serious offense, abuse of illegal drugs with issuance of a General Discharge Certificate.

7.  The applicant was discharged from active duty on 16 September 1992 under the provisions of Army Regulation 635-200, paragraph 14-12c for 
misconduct - abuse of illegal drugs.  He completed 3 years, 10 months, and 28 days of creditable active service.

8.  There is no evidence which indicates the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.  

9.  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.

10.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received NJP under Article 15 for using cocaine.

2.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general.  

3.  Although the applicant feels that he should have received an honorable discharge, his service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable discharge.

4.  There is no evidence of record which indicates the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting the applicant's request.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

x_____ x______ x______  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.




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          CHAIRPERSON


INDEX

CASE ID
AR20070015005
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080304
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19920916
DISCHARGE AUTHORITY
AR635-200, paragraph 14-12c
DISCHARGE REASON
Misconduct - abuse of illegal drugs
BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.0000
2.

3.

4.

5.

6.