RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 February 2008
	DOCKET NUMBER:  AR20070015079 


	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:


Mr. John T. Meixell

Chairperson

Ms. Carmen Duncan

Member

Ms. Rea M. Nuppenau

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 an upgrade of his discharge and correction of Item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) from “Misconduct/Abuse of Illegal Drugs” to something more favorable that would allow him to reenter the Army.

2.  The applicant states that he never abused drugs.  The one time he tested positive during a unit drug test was when he went through a state of depression after his grandmother passed away.

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  DD Form 214, dated 18 February 1993.

	b.  Self-authored letter, dated 15 October 2007.

	c.  Letters of Recommendations from former military supervisors.

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 3 January 1986 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  He subsequently executed a series of reenlistments in the Regular Army.  The highest grade he attained during his military service was sergeant/E-5.

3.  The applicant’s awards and decorations include the Army Achievement Medal, the Good Conduct Medal, the NCO Professional Development Ribbon, the Army Service Ribbon, the Overseas Service Ribbon, and the Marksman Marksmanship Qualification Badge with Rifle Bar.  His records do not show any significant acts of valor during his military service.   

4.  On 2 January 1988, the applicant departed his unit in an absent without leave (AWOL) status.  He surrendered on his own and was returned to his unit on 5 January 1988.  

5.  Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows he was reduced from the rank/grade of specialist four (SP4)/E-4 to private first class (PFC)/E-3 on 24 March 1988.

6.  On 19 September 1991, the applicant’s brigade commander approved a removal of an existing Bar to Reenlistment Certificate.  The facts and circumstances surrounding this bar to reenlistment are not available for review with this case.

7.  On 21 April 1992, the applicant participated in a unit urinalysis and his urine sample tested positive for marijuana.  

8.  On 19 May 1992, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ, for using marijuana between the dates of 6 April 1992 and 21 April 1992.  His punishment consisted of a reduction to the grade of SP4/E-4, forfeiture of $500 pay for two months (suspended until 19 September 1992), and 45 days of extra duty.  

9.  On 20 January 1993, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12 of Army Regulation 635-200 (Personnel Separations), for acts or patterns of misconduct, abuse of illegal drugs.

10.  On 21 January 1993, 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.  He waived consideration by an administrative separation board, waived personal appearance before a board, and submitted a statement on his behalf.  In his statement, the applicant admitted making a mistake and appealed to the separation authority for a second chance. 

11.  On 21 January 1993, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct, commission of a serious offense.  The immediate commander further remarked that the applicant had no potential for useful service.

12.  On 26 January 1993, the applicant’s intermediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(c) of Army Regulation 635-200.  He further recommended a General Discharge Certificate.

13.  On 8 February 1993, 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/abuse of illegal drugs, and directed the applicant be furnished a General Discharge Certificate.  The DD Form 214 he was issued confirms he was separated on 18 February 1993 with a general discharge under honorable conditions.  Item 28 of his DD Form 214 shows the narrative reason for separation as “Misconduct/Abuse of Illegal Drugs.”  This form further confirms that he completed a total of 7 years, 1 month, and 13 days of creditable active military service and he had 3 days of lost time due to AWOL.  

14.  In a self-authored letter, dated 15 October 2007, the applicant apologizes to the Army, Soldiers, and peers for the bad judgment that he made during his military service.  He further states that he accepted full responsibility and regretted this mistake since.  He concludes that he can contribute positively to the Army and Soldiers if he was given the opportunity to reenter the Army.

15.  The applicant submitted two letters by former military supervisors.  They remarked on the applicant’s abilities, professionalism, and support of the unit.  

16.  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.

17.  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 applicant contends that he is entitled to an upgrade of his discharge and that his narrative reason for separation should be changed from “Misconduct/ Abuse of Illegal Drugs” to a more favorable reason.

2.  There is no evidence in the applicant's record that the death of his grandmother contributed to his misconduct or indiscipline.  The applicant was provided with multiple counseling by his chain of command; yet, it was determined that any rehabilitative transfer would not have yielded any positive results.

3.  Evidence of record shows that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His record of service shows he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for wrongfully using marijuana.  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.

4.  Evidence of record confirms that the applicant’s narrative reason for separation was assigned based on the fact that he was separated under the provisions of chapter 14, Army Regulation 635-200 due to misconduct, commission of a serious offense (Abuse of Illegal Drugs).  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct – abuse of illegal drugs.  The only valid narrative reason for separation permitted under that paragraph is "Misconduct/Abuse of Illegal Drugs.”

5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __cd____  __rmn___  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 T. Meixell
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.