IN THE CASE OF:	

		BOARD DATE:	     24 September 2008

		DOCKET NUMBER:  AR20080009931 


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 his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he has suffered enough and it is an injustice for him to continue to suffer the consequences of a bad discharge.  He further states he had average conduct and efficiency ratings and his behavior and proficiency marks were good.  He states he received awards and decorations, his record of promotions showed he was generally a good Soldier, his record of disciplinary action consisted of only minor offenses, and he was so close to finishing his tour that it was unfair to give him a bad discharge.

3.  The applicant provides, in support of his application, a letter from the Department of Veterans Affairs that states their records show he received a discharge under honorable conditions.

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 military personnel record shows he enlisted in the Regular Army on 28 July 1982 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 11B (Infantryman).  He was promoted to specialist four/pay grade E-4 on 1 September 1984.

3.  On October 1984, the applicant tested positive for cocaine on an urinalysis test.  

4.  The applicant was enrolled in the Alcohol & Drug Abuse Prevention & Control Program (ADAPCP) during the period from 30 November 1983 to 5 December 1984.  According to an Assessment Summary, dated 23 January 1985, the applicant was released from the program after being enrolled the maximum of 360 days.  He did not abstain while in the program and he did not meet the required number of counseling sessions.  It was noted the applicant was released as not progressing with rehabilitation.  After being released he had an additional urine sample returned as being positive for a controlled substance.

5.  On 11 January 1985, the applicant received a mental status evaluation by a medical doctor.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  The examiner noted the applicant had recurrent cocaine abuse.

6.  On 23 January 1985, the applicant's commander notified him that action was being initiated to separate him due to a pattern of misconduct.  The commander advised the applicant of his right to submit statements in his own behalf; to be represented by counsel; to waive any of these rights; and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.  The commander also advised the applicant the proposed separation could result in a general discharge.

7.  On 23 January 1985, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Chapter 14 of Army Regulation 635-200 (Personnel Separations) for abuse of illegal drugs.  The applicant did not submit statements on his own behalf and requested consulting counsel.  The applicant acknowledged he could expect to encounter substantial prejudice in civilian life if he received a discharge which was less than honorable.

8.  On 23 January 1985, under the provisions of Chapter 14 of Army Regulation 635-200,  the applicant's commander recommended him for discharge due to patterns of misconduct and illegal drugs.  

9.  On 23 January 1985, the appropriate authority approved the recommendation for discharge of the applicant under the provisions of Chapter 14 of Army Regulation 635-200 and directed that he be issued a General Discharge Certificate.  

10.  On 5 February 1985, the applicant was discharged under the provisions of Chapter 14 of Army Regulation 635-200 by reason of misconduct - drug abuse. He had completed 2 years, 6 months, and 4 days of active service that was characterized as under honorable conditions.  

11.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statue of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  This regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-200 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 his discharge under honorable conditions should be upgraded to an honorable discharge.  He further contends he had average or good performance marks, was promoted, received awards and decorations, only had minor offenses, and he was close to the end of his enlistment when he was discharged.

2.  The applicant received a general discharge under honorable conditions when a discharge under other than honorable conditions was normally appropriate under the provisions of Chapter 14 of Army Regulation 635-200.  Therefore, it is apparent the applicant's commander took into consideration the applicant's overall record of service when he recommended a general discharge instead of a discharge under other than honorable conditions.

3.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  A review of the applicant's record of service, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

5.  The ABCMR does not upgrade discharges based solely on the passage of time.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that 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)                                         AR20080009931





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ABCMR Record of Proceedings (cont)                                         AR20080009931



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