IN THE CASE OF:	  

	BOARD DATE:	  1 July 2008

	DOCKET NUMBER:  AR20080006946 


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 an upgrade of his discharge and removal of the narrative reason for separation.

2.  The applicant states the narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) does not reflect the truth of what happened.

3.  The applicant provided a copy of his DD Form 214, dated 4 April 1991, and an undated self-authored statement 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 records show that he enlisted in the Regular Army for a period of 3 years and 14 weeks on 2 August 1988.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s awards and decorations include the Army Service Ribbon, the National Defense Service Medal, the Combat Infantryman Badge, the Armed Forces Expeditionary Medal (Operation Just Cause), the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Grenade Bar.

4.  On 16 July 1990, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for unlawfully striking another Soldier on the head with a boot, on or about 17 May 1990; and for assaulting a superior noncommissioned officer by hitting him in the chest and trying to close him in between a door, on or about 17 May 1990.  His punishment consisted of reduction to private (PVT)/E-1, forfeiture of $362.00 pay per month for two months, 45 days of extra duty, and 45 days of restriction.  

5.  On 1 August 1990, the U.S. Army Criminal Investigation Command, Fort Ord, California, submitted a final report of investigation in which the applicant was involved in the wrongful possession, distribution, and use of lysergic acid diethylamide (LSD), on 18 May 1990.

6.  On 1 October 1990, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations), for misconduct, commission of a serious offense.  The specific basis of the recommendation was the applicant’s wrongful use and possession of LSD, failing to report to his appointed place of duty, writing bad checks, unlawfully striking another Soldier, and being absent from formation during support cycle Guard Mount.

7.  On 3 October 1990, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive 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 requested consideration of his case by a Board of Officers and personal appearance before a Board of Officers.  

8.  On 9 October 1990, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct, abuse of illegal drugs.  The specific basis of the recommendation was the applicant’s wrongful use and possession of LSD, failing to report to his appointed place of duty, writing bad checks, unlawfully striking another Soldier, and being absent from formation during support cycle Guard Mount.  The immediate commander further recommended an Other Than Honorable Conditions Discharge Certificate. 

9.  On 18 October 1990, the applicant’s intermediate commander recommended approval of the applicant’s discharge with an Under Other Than Honorable Conditions Discharge Certificate. 

10.  On 31 October 1990, the applicant’s senior commander recommended appointment of an administrative separation board to consider the applicant's elimination from the Army.  He further recommended the applicant receive an Other Than Honorable Conditions Discharge Certificate. 

11.  On 3 December 1990, by memorandum addressed to the Commanding General, 7th Infantry Division, Fort Ord, California, the Staff Judge Advocate (SJA), recommended the approval and appointment of an administrative separation board in accordance with Army Regulation 635-200.  On the same date, the Assistant Division Commander, 7th Infantry Division, Fort Ord, California, adopted the recommendation of the SJA and authorized the appointment of an administrative separation board. 

12.  On 18 December 1990, by memorandum, the administrative board recorder notified the applicant of the time, date, location, composition, uniform, and purpose of the administrative board.  He further explained his right to consult with counsel and present witnesses.  On 3 January 1991, the applicant acknowledged receipt of the notification to appear before the administrative board and his rights to present evidence or witnesses during the board.    

13.  The board convened at Fort Ord, California, at 0941 hours on 10 January 1991, to determine whether to administratively separate the applicant from the Army for misconduct, commission of serious offenses (abuse of illegal drugs).  The applicant and his counsel were present during the board and were afforded full opportunity to cross-examine adverse witnesses, to present evidence in his own behalf, and to testify in person or submit a statement.  The board adjourned at 1230 hours on 10 January 1991.


14.  The board reached an unanimous decision and found a definite pattern of misconduct had been established and therefore recommended to the approving authority that the applicant be separated from the Army with an Under Honorable Conditions (General) Discharge Certificate.  The board president authenticated the report of proceedings as completed and accurate.  The separation authority approved the findings and recommendations and further directed immediate separation.

15.  On 19 February 1991, the Assistant Chief of Staff, G-1, recommended approval of the board findings to separate the applicant in accordance with chapter 14-12(c) of Army Regulation 635-200 for misconduct, commission of a serious offense, abuse of illegal drugs, with a General Discharge Certificate.  On the same date, the SJA concurred with the recommendation of the Assistant Chief of Staff, G-1.

16.  On 26 March 1991, the separation authority reviewed the applicant’s misconduct and ordered the applicant discharged from the Army under the provisions of chapter 14-12c of Army Regulation 635-200 for misconduct, commission of a serious offense, abuse of illegal drugs, with a General Discharge Certificate.  Accordingly, the applicant was discharged on 4 April 1991.  The DD Form 214 he was issued at the time of his discharge shows he was discharged in accordance with chapter 14-12c of Army Regulation 635-200. Item 28 (Narrative Reason for Separation) of the applicant’s DD Form 214 shows the entry “Misconduct-Abuse of Illegal Drugs.”  This form further shows he completed 2 years, 8 months, and 3 days of creditable military service. 

17.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15 year statute of limitations.

18.  In his undated self-authored statement, the applicant states that on the night of his incident, he walked into his barracks room and found some of his friends/
roommates talking about a bet to eat a piece of paper.  He was dared to take/eat the piece of paper that turned out to be impregnated with LSD.  That night, he initially went to the hospital and was subsequently taken to the military police station where he was questioned.  The next day, he and two other Soldiers were reduced in rank and eventually appeared before an administrative separation board.  He concludes that he is 37 years old and has tried to reenter the Army but was denied because of one mistake that ruined what he called a great career.


19.  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.

20.  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 evidence of record shows that the applicant had a history of misconduct ranging from the less serious offenses of failure to report and writing bad checks, to the more serious offenses of striking another Soldier and the wrongful possession and use of LSD. 

2.  The evidence of record further 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.  Furthermore, 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.”


3.  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.  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.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


								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)                                         AR20080006946



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ABCMR Record of Proceedings (cont)                                         AR20080006946



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