IN THE CASE OF:	  

		BOARD DATE:	        09 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080006609 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests: 

	a.  his general discharge (GD), under honorable conditions be upgraded to honorable; and 

	b.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show award of the Ranger Tab. 

2.  The applicant states, in effect, that it has been 15 years since his discharge and he has been a good citizen.  He now works for the Government and is doing honorable things. 

3.  The applicant provides a copy of his civilian evaluation report and a letter from General Petraeus, dated 16 March 1997.

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.  On 6 January 1989, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 13 January 1989, he was discharged from the DEP and enlisted in the Regular Army for 4 years.  He completed training requirements and was awarded military occupational specialty 11B (Infantryman).  He attained the grade of sergeant (SGT)/E-5.  On 30 June 1992, the applicant reenlisted for a period of 4 years. 

3.  On 23 September 1993, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for illegal use of cocaine.  His punishment consisted of a reduction to specialist/E-4, a forfeiture of $606.00 and 45 days of restriction and of extra duty. He did not appeal the NJP action.
 
4.  On 24 September 1993, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 14-12c of Army Regulation
635-200 (Enlisted Personnel Separations) by reason of misconduct – commission of a serious offense (illegal use of cocaine).  He recommended the applicant receive a GD.  He also advised the applicant that the separation authority was not bound by his recommendation as to characterization of service, and that he may direct either a GD or an under other than honorable conditions discharge.  He was also advised that he was not entitled to have his case heard before an administrative elimination board because he did not have
6 years of military service.  However, if the characterization of service of under other than honorable conditions was recommended prior to final action in his case, the applicant would be authorized to request a hearing before an administrative elimination board.

5.  Upon notification of his impending discharge, the applicant waived his right to consult with legal counsel and he did not submit a statement in his own behalf.  He acknowledged that he understood the unit commander was recommending him for a GD, and that he did not have the right to have his case heard before an administrative elimination board unless a characterization of service of under other than honorable conditions was recommended prior to final action in his case.  He also acknowledged that he understood he may be ineligible for many 



or all benefits as a veteran under both and Federal and State laws.  He finally acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable, he could make application to the Army Discharge Review Board or the ABCMR for upgrading.  However, an act of consideration by either board did not imply that his discharge would be upgraded. 

6.  On 1 October 1993, the separating authority waived rehabilitation transfer and directed the applicant be discharged with a GD.

7.  On 15 October 1993, the applicant was discharged by reason of misconduct – commission of a serious offense after completing 4 years, 9 months, and 3 days of active military service.

8.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows that he completed Ranger schooling and was awarded the Ranger Tab.  There is no evidence in the record showing that the tab was revoked.  This award is not shown on his DD Form 214.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions and patterns of misconduct such as frequent incidents of a discreditable nature with civil or military authorities, commission of a serious offense, and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

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 (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.

11.  Paragraph 1-30a and c of Army Regulation 600-8-22 (Military Awards) state, in pertinent part, that a commanders authorized to award combat and special skill badges are authorized to revoke such awards.  An award of any combat and special skill badge will be automatically revoked on dismissal, dishonorable discharge, or conviction by courts-martial for desertion in wartime.  

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time and he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to have jeopardized his rights.  

2.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the special trust and confidence placed in a noncommissioned officer (NCO).  The applicant had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career and this misconduct diminished the quality of service below that meriting a fully honorable discharge.  

3.  The character of the applicant's discharge is commensurate with the applicant's overall record of military service.  As such, the quality of his service was not consistent with the Army's standard for acceptable personal conduct and performance of duty by military personnel.  

4.  The applicant's contentions were carefully considered.  While it is true that 
15 years have elapsed since the applicant's discharge, the passage of time does not provide a basis for changing his characterization of service.  The applicant also contends that he has done honorable things since his discharge and now works for the government.  However, good post service conduct alone is not a basis for upgrading a discharge, and, in this case, it is not sufficient to overcome the offense he committed while in the Army.  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 did not submit any evidence that would satisfy this requirement.  Therefore, there is no justification to change the applicant's characterization of service to honorable.

5.   The applicant was awarded the Ranger Tab which is not shown on his DD Form 214.  Given the regulatory guidance above, there is no evidence the tab was revoked.  Therefore, he is entitled to have his record corrected to show this award.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__XXX __  __XXX__  __XXX__   GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the already-awarded Ranger Tab to the applicant's DD Form 214.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge. 





      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080006609



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ABCMR Record of Proceedings (cont)                                         AR20080006609



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