IN THE CASE OF:	

		BOARD DATE:	  23 October 2008

		DOCKET NUMBER:  AR20080010344 


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 his discharge was unjust because it was based on an isolated incident that occurred years ago.  He recently enrolled at Lansing Community College, but when he filed his claim for educational benefits under the Montgomery G.I. Bill, he was denied.  The denial was due to his discharge characterization, which is under honorable conditions.  He further states that his discharge was unjust and improper because he had no other adverse actions and he was not offered any counseling, treatment, or rehabilitation services.

3.  The applicant provides a copy of his separation document (DD Form 214) and DD Form 293 (Application for the Review of Discharge from The Armed Forces of the United States), dated 9 June 2008, in support of his application. 

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 12 April 1989.  He completed the necessary training and was awarded military occupational specialty (MOS) 63J (Quartermaster Chemical Equipment Repairer).  His highest pay grade held was E-4.

3.  On 23 April 1991, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of cocaine.  His punishment included reduction to private (PV1)/E-1, forfeiture of #376.00 per month for 2 months; and 45 days of extra duty.

4.  On 19 April 1991, the applicant's commander recommended separation under the provisions of Army Regulation 635-200 (Personnel Separation), chapter
14-12c, for Misconduct-abuse of illegal drugs.  The commander stated that the reason for his proposed actions was because the use of a controlled substance (cocaine) was a direct disobedience of Army Regulations.  The applicant was advised that the separation authority was not bound by the recommendation as to the characterization and they may direct characterization as honorable or under honorable conditions [general].  If the recommendation was approved the proposed separation could result in a discharge or release from active duty.  He was advised of his right to counsel, his right to submit a statement in his own behalf and his right to be represented by counsel.  The commander also explained the applicant's waiver privileges and the withdrawal of waiver privileges.  The applicant acknowledged receipt of the recommendation.

5.  The applicant consulted with legal counsel and was advised of the basis for the contemplated action to separate him for misconduct—abuse of illegal drugs, under the provision of Army Regulation 635-200, Paragraph 14-12c and its effect, of his rights available to him, and the effects of any action taken by him in waiving his rights.  He understood that he was not entitled to have his case considered by an administrative separation board because he had less than six years of active or reserve service at the time of separation and being considered for a separation under other than honorable conditions.  

6.  He further understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued and he understood that as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran 
under both Federal and State Laws.  He understood that if he received a discharge/character of service which is less than honorable, he could make application to the Army Discharge Review Board or the Army Board for correction of Military Records for upgrading.  However, he realized that an act of consideration by either board did not imply that his discharge would be upgraded. He further understood that he would be ineligible to apply for enlistment in the United States Army for a period of two years after discharge.  On 18 May  
1991, the applicant submitted a statement in his own behalf.

7.  In his statement the applicant stated that he understood the decision he made concerning the use of illegal drug was definitely a wrong choice.  He stated he was not at that time a drug user and would not be a drug user in the future.  He was currently enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), which met every Wednesday morning.  He accepted his punishments without complaint, but he found it difficult to accept the "punishment" of being discharged from the military service.  He requested an honorable discharge in order to continue his military career as a Reservist or Army National Guardsman.

8.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by the commander.

9.  On 22 April 1991, the commander forwarded the recommendation for separation to the approving authority.  The recommendation for separation was approved by the appropriate authority.

10.  On 29 May 1991, the applicant was discharged from active duty.  The applicant was given a General Discharge Certificate for misconduct-drug abuse.  He had completed a total of 2 years, 1 month, and 18 days of Net Active Service This Period.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the 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, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge because it was unjust and improper and it was an isolated incident that occurred years ago.  He also states that he was never offered any counseling, treatment, or rehabilitation services.

2.  However, the applicant admitted in his own statement that he was enrolled in the ADAPCP, which met every Wednesday morning.  The ADAPCP does provide counseling and rehabilitation for drug users.

3.  The evidence shows that the applicant tested positive for cocaine and was recommended for discharge under the provision of Army Regulation 635-200, chapter 14-12c for misconduct-drug abuse.

4.  Regulatory guidance provides for the processing for separation of Soldiers in the pay grade of E-5 and above upon discovery of drug abuse.  The applicant’s statement concerning educational benefits to attend school is noted.  However, his statement is not sufficient to mitigate a properly issued discharge.  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)                                         AR20080010344



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ABCMR Record of Proceedings (cont)                                         AR20080010344



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