IN THE CASE OF:	  

		BOARD DATE:	        26 August 2008

		DOCKET NUMBER:  AR20080008526 


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 under other than honorable conditions (UOTHC) discharge be changed to an honorable discharge.

2.  The applicant states that his discharge is unjust based on his service record.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); his DA Form 1059 (Service School Academic Evaluation Report); and his DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice).

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 enlisted in the Regular Army on 15 June 1983.  At the completion of basic training and advanced individual training, he was awarded military occupational specialty 71L (administrative specialist).  His highest grade held was specialist four.  He was honorably discharged on 8 June 1986 for the purpose of immediate reenlistment.  

3.  The applicant reenlisted on 9 June 1986 for a period of 3 years with a 
15-month extension.  

4.  On 15 July 1988, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - abuse of illegal drugs.  He was advised of his rights.

5.  On 5 August 1988, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using some amount of cocaine and for dishonorably failing to pay a debt on two separate occasions.

6.  The applicant acknowledged notification of the separation action, consulted with legal counsel, requested a hearing by a board of officers, waived a personal appearance before an administrative separation board, and did not submit a statement in his own behalf.

7.  The applicant consulted with legal counsel again and voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than a general discharge, and did not submit a statement in his own behalf.  

8.  On 5 October 1988, the separation authority rejected the conditional waiver and directed a board of officers be convened.  

9.  On 14 November 1988, the applicant consulted with legal counsel again, changed his original decision, and waived the administrative board, with the understanding that upon separation he could receive an UOTHC discharge.

10.  On 1 December 1988, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c for drug abuse with issuance of an UOTHC discharge.

11.  The applicant was discharged on 27 December 1988 under the provisions of Army Regulation 635-200, paragraph 14-12c.  He completed 2 years, 6 months, and 19 days of creditable active service during the period under review and a total of 5 years, 6 months, and 13 days of active military service.  

12.  On 22 October 1990, the Army Discharge Review Board determined that the applicant’s reason and characterization of discharge were both proper and equitable and voted to deny relief.  

13.  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.

14.  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.  

15.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received an Article 15 for wrongfully using some amount of cocaine and two specifications of dishonorably failing to pay a debt.  

2.  A discharge UOTHC was normally appropriate for a Soldier discharged under chapter 14 for misconduct.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable discharge.

3.  After review of the evidence of this case, it is determined that the applicant has not presented sufficient evidence which warrants changing his UOTHC discharge to an honorable or a general discharge.

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)                                         AR20080008526



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080008526



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1