IN THE CASE OF:	  

		BOARD DATE:	        31 July 2008

		DOCKET NUMBER:  AR20080008239 


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 that his discharge be upgraded from general under honorable conditions to an honorable discharge.  In addition, he further requests that his rank be restored to Sergeant (SGT)/E-5.

2.  The applicant states, in effect, that he was reduced in rank and discharged because of a drug habit he picked up while in the Army.  The applicant further states that he should have received help, but the Army chose to get rid of him.  

3.  The applicant provides no additional documentation 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 had prior enlisted service in the Army National Guard.  He enlisted in the Regular Army on 17 March 1980 and successfully completed basic training and advanced individual training and was awarded military occupational specialty 76Y (Supply Specialist).  

3.  On 1 April 1983, the applicant was promoted to the rank of SGT.  He was honorably discharged on 12 April 1984 and immediately reenlisted on 13 April 1984.  

4.  On 22 March 1985, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to be at his appointed place of duty.  His punishment consisted of a forfeiture of $228.00 pay per month for two months (suspended) and extra duty for 14 days.

5.  On 18 June 1986, the applicant accepted NJP under Article 15, UCMJ for wrongful use of marijuana and cocaine and for being absent without leave (AWOL) during the period 24 May 1986 through 29 May 1986.  His punishment consisted of a reduction to the rank and grade of Specialist Four (SP4)/E-4, a forfeiture of $494.00 pay per month for two months, and extra duty for 45 days.

6.  On 25 September 1986, the applicant accepted NJP under Article 15, UCMJ for being AWOL during the period 6 September 1986 through 8 September 1986. His punishment consisted of a forfeiture of $100.00 pay per month for two months and extra duty for 30 days. 

7.  On 31 October 1986, the applicant was notified by letter from the Army and Air Force Exchange Service (AAFES) of a dishonored check he had written on 16 October 1986.

8.  On 26 November 1986, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 14 for misconduct – patterns of misconduct.  The reasons cited by the commander were the applicant’s being a first time offender of illegal drugs, AWOLs, and writing a bad check.  The applicant was advised of his rights and was afforded the opportunity to consult with counsel.  He signed a statement declining the opportunity and did not submit a statement in his behalf.

9.  On 15 December 1986, the appropriate authority approved the elimination packet and waiver of the rehabilitative transfer requirement and directed the applicant receive a general under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  On 
22 December 1986, the applicant was separated from the service after completing a total of 2 years, 8 months, and 10 days of creditable active service this term with 9 days lost time due to AWOL.

10.  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, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, 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 and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  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 discharge if such is merited by the Soldier’s overall record.  

11.  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.  

12.  Chapter 3 of Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP)), in pertinent part, stated that an individual whose performance, social conduct, interpersonal relations or health becomes impaired because of the abuse of alcohol or other drugs has the personal obligation to seek treatment and rehabilitation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was reduced and discharged because of the drug habit he got while in the Army and that he should have received help.  However, there is no evidence and the applicant has not provided evidence that he sought assistance from his chain of command, chaplain, or the ADAPCP to assist him with his problems prior to discharge.  In addition, he could have made a statement with his discharge proceedings and failed to take the opportunity to do so. Therefore, there is no basis for this argument.  

2.  The applicant's records show that he received three Article 15s, was reduced from SGT to SP4 for wrongful use of marijuana and cocaine, had two instances of AWOL, and had failed to maintain sufficient funds in his checking account.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.

3.  There is no evidence to show the Article 15 that reduced the applicant to 
SP4 was improperly administered or that the punishment was too harsh.

4.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

5.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  __xx____  __xx____  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.




      _______ _ xxxx_____   ___
               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)                                         AR20080008239





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ABCMR Record of Proceedings (cont)                                         AR20080008239



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