RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 24 April 2008
DOCKET NUMBER: AR20080000396
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.
Director
Analyst
The following members, a quorum, were present:
Chairperson
Member
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 discharge be upgraded.
2. The applicant states he can not receive Veteran's Preference for Federal employment with his current discharge.
3. The applicant provides a copy of his resume demonstrating good post service citizenship, successful employment, and abstinence from illegal drug use.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant entered active duty on 26 November 1982, completed training and was awarded the military occupational specialty (MOS) 67U (Medium Helicopter Repairman).
3. The applicant's Official Military Personnel File (OMPF) is devoid of any documentation of his service or the actions that led to his discharge except for Headquarters, 25th Infantry Division Orders 97-15, dated 6 April 1984, which reduced him from pay grade E-3 to pay grade E-1 in conjunction with his discharge for misconduct.
4. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions in accordance with Army Regulation 635-200, paragraph 14-12d for misconduct-drug abuse.
5. The applicant provides a resume outlining his education and work history since his release from active duty.
6. There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.
7. Army Regulation 635-200 (Personnel Separations), paragraph 14-12d, as then in effect, states that an Soldier are subject to administrative discharges for the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial (MCM). Abuse of illegal drugs is serious misconduct. A discharge under other than honorable conditions is normally considered appropriate.
8. Army Regulation Army Regulation 15185 (Army Board for Correction of Military Records [ABCMR]), paragraph 29, states 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. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.
2. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.
3. The applicant's post service citizenship, successful employment, and reported abstinence from illegal drug use were taken into consideration. However, they are not sufficiently mitigating to warrant upgrading the characterization of his discharge.
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.
_________X_____________
CHAIRPERSON
ABCMR Record of Proceedings (cont) AR20080000396
4
DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA 22202-4508
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