IN THE CASE OF:	  

		BOARD DATE:	        20 November 2008

		DOCKET NUMBER:  AR20080007645 


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, in effect, that his general, under honorable conditions discharge be upgraded to honorable. 

2.  The applicant did not provide a statement with this application. 

3.  The applicant provides no additional documentary evidence in support of this case.

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 record shows he enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) on 29 September 1980.  He was subsequently discharged from the DEP on 24 November 1980 and entered active duty on 25 November 1980 for a period of four years.  He was trained in, awarded, and served in military occupational specialty (MOS) 63B (Light - Wheel Vehicle Mechanic).  Records further show the applicant served continuously until his discharge on 20 April 1990.  The highest rank he attained while serving on active duty was sergeant (SGT)/pay grade E- 5. 

3.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the offenses indicated:  on or about 27 November 1989 for wrongful possession of cocaine and on or about
4 December 1989 for wrongful use of cocaine.

4.  On 11 January 1990, the applicant's unit commander initiated action to separate him for misconduct under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-12b(2).  He cited the reason for his proposed action was the applicant's illegal use and possession of cocaine.  The unit commander also advised the applicant of his rights. 

5.  On 16 January 1990, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to him.  The applicant requested to be considered by an administrative separation board, personal appearance before an administrative board, consulting counsel and representation by military counsel.  The applicant elected not to make a statement in his own behalf.  The applicant acknowledged that he understood he could encounter substantial prejudice in civilian life if he received a general discharge.

6.  On 13 April 1990, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for "misconduct - illegal use of drugs" and directed that he be discharged with a General Discharge Certificate.

7.  On 20 April 1990, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he was separated under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct – drug abuse.  This form further shows the applicant completed a total of 9 years, 4 months, and 21 days of creditable active service. 


8.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statue of limitations

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct.  Paragraph 14-12c(2) pertains specifically to a commission of a serious offense that is drug-related.  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.  However, the separation authority may direct a general, under honorable conditions discharge (GD) or an honorable discharge (HD) if such is merited by the Soldier’s overall record.

10.  Army Regulation 635-200, paragraph 3-7, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded to an honorable discharge.

2.  The evidence of record confirms his unit commander notified the applicant of the contemplated separation action and that he consulted with legal counsel.  It further shows that the applicant was advised of the basis for the contemplated separation action and its possible effects.

3.  The record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  The record further shows the applicant's discharge accurately reflects his overall record of undistinguished service.  

4.  Evidence of record shows the applicant received nonjudicial punishment for using cocaine and having in his possession cocaine.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.

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
      
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)                                         AR20080007645



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ABCMR Record of Proceedings (cont)                                         AR20080007645



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