IN THE CASE OF:	  

		BOARD DATE:	        13 AUGUST 2008

		DOCKET NUMBER:  AR20080008264 


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 general discharge be upgraded to an honorable discharge.

2.  The applicant states that he made a mistake in his career while he was in the service and that he has served his country.  He states that he would like for the Board to consider his request for a discharge upgrade.

3.  The applicant provides in support of his application, a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214). 

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 12 November 1980, the applicant enlisted in the Army in Philadelphia, Pennsylvania, for 3 years, in the pay grade of E-2.  He successfully completed his training as a chaparral crewmember.

3.  He was promoted to the pay grade of E-3 on 13 February 1981, and he was promoted to the pay grade of E-4 on 14 June 1981.

4.  On 19 January 1982, the applicant extended his 12 November 1980 period of enlistment for an additional 18 months.  He was promoted to the pay grade of 
E-5 on 6 August 1982 and on 7 June 1985, he extended his 12 November 1980 period of enlistment for an additional 1 month.  On 9 July 1985, the applicant reenlisted in the Army for 6 years.

5.  The applicant's records show that on 15 March 1989, he was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  On 25 April 1989, he completed the program and he was released with a recommendation that he be retained on active duty.

6.  The applicant's records show that he was counseled on approximately 18 separate occasions between 19 August 1988 and 29 November 1989 for acts of misconduct which included:  personal conduct by failure to instruct his squad on sleeping arrangements; writing a dishonored check; failure to train his platoon; cashing bad checks; failing his Army Physical Fitness Test; failure to pay attention to detail and maintain his squad's status; setting a "lousy" example for the rest of his platoon by avoiding doing his duty as an noncommissioned officer during a platoon assembly in the field; oversleeping; being overweight; leaving his section without first insuring that his squad was properly camouflaged; failure to maintain his squad in accordance with the battalion's safety standards; being found outside of his platoon sector; not knowing where he was going on an ammunition resupply run; failing to abide by uniform requirements; failure to pay and secure "D-27" in accordance with instructions; failure to properly secure his "TA 50" which came up missing; failure to repair; indebtedness; failure to pay his bills; failure to participate in the mandatory overweight program; and giving his military identification card to a cab driver in lieu of payment.

7.  A Military Police Report dated 27 November 1989 shows that on 24 October 1989, during a random urinalysis test, the applicant rendered a urine sample that tested positive for marijuana.  On 1 November 1989, he was advised of his legal rights which he invoked.  On 21 November 1989, the 1st Armored Division Staff Judge Advocate's office opined that there was sufficient probable cause to title the applicant with possession and use of a controlled substance.


8.  On 19 December 1989, the applicant was reenrolled in the ADAPCP.  His ADAPCP Client Progress Report shows that on 19 March 1990, his commander appraised his progress and military effectiveness as satisfactory.  

9.  On 16 May 1990, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12c for misconduct – commission of a serious offense.  His commander cited his unsatisfactory performance while being a Soldier and his unwillingness to obey the prescribed rules and guidelines set for a Soldier in the United States Army as the basis for his recommendation.  The applicant was told that it was being recommended that his characterization of service be under other than honorable conditions.  He acknowledged receipt of the notification on 22 May 1990 and, after consulting with counsel, he waived is right to have his case considered by a board of officers. 

10.  The applicant was released from the ADAPCP on 17 June 1990 with a recommendation that he be retained on active duty.  However, notwithstanding the ADAPCP’s assessment, the commander's appraisal of the applicant's progress and military effectiveness was noted as unsatisfactory with a recommendation for separation.

11.  The appropriate authority approved the recommendation for discharge on 19 June 1990 and he directed the issuance of a general discharge.  Accordingly, on 3 August 1990, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct – commission of a serious offense.  He had completed 9 years, 8 months and 22 days of net active service this period and he was furnished a General Discharge Certificate.

12.  On 13 July 1992 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.

14.  Army Regulation 635-200 provides that characterization at separation will be based upon the quality of the Soldier's service, including the reason for separation and guidance in paragraph 3-7, subject to the limitations under the 
various reasons for separation.  The quality of service will be determined according to standards of acceptable personal conduct and performance of duty for military personnel.  These standards are found in the Uniform Code of Military Justice, directives and regulations issued by the Army and the time-honored customs and traditions of military service.  The quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline.  Characterization of service may be based on conduct in the civilian community.  The reasons for separation, including the specific circumstances that form the basis for the separation, will be considered on the issue of characterization.  As a general matter, characterization will be based upon a pattern of behavior other than an isolated incident.  There are circumstances, however, in which the conduct or performance of duty reflected by a single incident provides the basis for characterization of service.  Due consideration will be given to the Soldier's age, length of service, grade, aptitude, physical and mental conditions, and the standards of acceptable conduct and performance of duty.  The characterization of service is of great significance to the soldier and must accurately reflect the nature of service performed.  Eligibility for veterans benefits provided by law, eligibility for re-entry into service, and acceptability for employment in the civilian community may be affected by these determinations.  The characterization of service will be determined solely by the military record during the current enlistment or period of service, plus any extension thereof, from which the soldier is being separated.  The Soldier's performance of duty and conduct must be accurately evaluated.  The evaluation must be based on the overall period of service and not on any isolated actions or entries on his Personnel Qualification Record (DA Form 2-1).

DISCUSSION AND CONCLUSIONS:

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

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, they are not sufficiently mitigating to warrant the requested relief.  The applicant's records show that he was counseled on at least 18 separate occasions for his numerous actions of misconduct.  Additionally, he submitted a urine sample that tested positive for marijuana even after he had completed the ADAPCP.  Based on his overall record of service, it appears that the general discharge that the applicant was furnished is appropriate.
4.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080008264



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ABCMR Record of Proceedings (cont)                                         AR20080008264



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