IN THE CASE OF:	

		BOARD DATE:	 4 December 2008 

		DOCKET NUMBER:  AR20080012093 


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 under honorable conditions be upgraded to an honorable discharge based on clemency.

2.  The applicant states he has been discharged for over 16 years and he has been living with this on his file.  On a Self-Help Guide to Discharge Upgrading the applicant checked six sample issues as to why he should receive an upgrade.  The issues include, clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge, receipt of awards and decorations, receipt of letters of recommendation, record of promotions, prior honorable discharges, and good citizenship since discharge.

3.  The applicant provides, in support of his application, copies of seven certificates of achievement from the recruiting station in Miami, six additional certificates of achievement he received from 15 July 1982 to 17 December 1984, five letters of commendation he received from 13 November 1990 to 28 March 1991, four personal references dated 10 April 1991 to 20 May 1992, four undated personal references, 36 pages from his military personnel records, and a letter from his wife.

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 initially enlisted in 
the Regular Army on 29 July 1981.  He was awarded the military occupational specialty of 11B (Infantryman).  He subsequently reenlisted on 30 January 1984 and on 11 September 1989.  

3.  The applicant was promoted to staff sergeant (SSG)/pay grade E-6 effective
1 April 1989.

4.  The applicant was assigned to Germany; Fort Benning, Georgia; Korea; and returned to Fort Benning on 21 August 1986.  On 3 January 1990, he was assigned to the U.S. Army Recruiting Battalion in Miami, Florida.  

5.  On 12 July 1991, the applicant was evaluated by a captain of the U.S. Air Force Medical Corps, Chief, Mental Health Services at 31st Medical Group in Florida.  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.

6.  On 16 September 1991, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine, a controlled substance, as evidenced by positive urinalysis results on specimens collected on 23 March 1991 and 29 May 1991.  The punishment imposed consisted of reduction to pay grade of E-5 (suspended for 90 days to be automatically rescinded if not vacated before 15 December 1991) and forfeiture of $570.50 pay per month for 2 months.

7.  On 16 September 1991, the applicant appealed and submitted additional matters.  On 30 September 1991, the applicant's appeal was denied.

8.  On 12 December 1991, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation
635-200 (Personnel Separations), chapter 14, paragraph 14-12c(2) due to commission of a serious offense based on his positive urinalysis results (cocaine) on tests conducted on 23 March and 29 May 1991.  The commander further notified the applicant he was recommending the applicant receive a general discharge under honorable conditions.  However, the separation authority may direct that the applicant's service be characterized as honorable; general, under honorable conditions; or under other than honorable conditions.

9.  The commander advised the applicant of his right to have his case considered by an administrative separation board (if he had 6 or more years of total active and reserve service or an under other than honorable conditions recommendation is made by the separation authority), to appear in person before an administrative separation board, 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 and request his case be presented before an administrative separation board. 

10.  On 18 December 1991, 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 Army Regulation 635-200, chapter 14 for abuse of illegal drugs.  The applicant requested consideration of his case by an administrative separation board, requested to personally appear before such board, submitted statements in his own behalf, and requested consulting counsel and representation by military counsel.  The applicant also acknowledged that, as the result of issuance of a discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life.

11.  On 23 December 1991, the applicant's commander recommended him for discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2) due to misconduct - abuse of illegal drugs.  The commander recommended a general discharge under honorable conditions.

12.  On 2 January 1992, the Commander, U.S. Army Recruiting Battalion, Miami, recommended the applicant be discharged with a characterization of service of general, under honorable conditions.

13.  On 21 February 1992, the Commander, U.S. Army, 2nd Recruiting Brigade (Southeast), Forest Park, Georgia, recommended the applicant be referred to an administrative separation board.  The brigade commander further recommended separation and the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

14.  On 26 March 1992, the applicant submitted another statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation
635-200, chapter 14, paragraph 14-12c(2) for a positive urinalysis.  The applicant requested consideration of his case by an administrative separation board, requested to personally appear before such board, submitted statements in his own behalf, and requested consulting counsel and representation by military counsel.  The applicant also acknowledged that, as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws and that he may expect to encounter substantial prejudice in civilian life.  The applicant also acknowledged that, as the result of issuance of a discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life.

15.  On 26 March 1992, the applicant submitted a request to voluntarily waive consideration of his case by an administrative separation board contingent upon his receiving a characterization of service or description of separation no less favorable than under honorable conditions.

16.  On 27 March 1992, the applicant's defense counsel forwarded his request for conditional waiver of his right to an administrative separation board hearing and his statements on his behalf requesting an honorable discharge.

17.  On 10 April 1992, the brigade commander reviewed the applicant's request and recommended approval of his conditional waiver and that he receive a general discharge under honorable conditions.

18.  On 20 April 1992, the Commanding General of U.S. Army Recruiting Command approved the applicant's waiver of his right to appear before an administrative separation board and directed that the applicant be discharged from the Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c for misconduct - abuse of illegal drugs.  The commanding general also directed that the applicant's service would be characterized as under honorable conditions and that he be issued a General Discharge Certificate.

19.  On 15 May 1992, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c by reason of drug abuse. He had completed 10 years, 9 months, and 16 days of active service that was characterized as under honorable conditions.  

20.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the Army Service Ribbon, the Army Good Conduct Medal (3 awards), the Overseas Service Ribbon (2 awards), the Noncommissioned Officer Professional Development Ribbon with Numeral 2, the Army Achievement Medal (2 awards), the Army Commendation Medal, the Army Recruiter Badge with 3 gold stars, the Parachutist Badge, the Driver Badge [correctly known as the Driver and Mechanic Badge with Driver-W Bar], and the Expert Marksmanship Qualification Badge with Rifle and Grenade Bars. 

21.  Four of the personal references, dated from 10 April 1991 to 20 May 1992, were written during the period of the applicant's NJP and his ultimate discharge.  The four undated personal references appear to be written about the same timeframe.  It appears as though some of these letters may have been submitted with the applicant's appeal of his NJP in September 1991.  Some of these letters may have been submitted with his acknowledgment of the discharge proceedings being initiated by his commander.

22.  Six of the personal references submitted by the applicant question the procedures used when the urinalysis was conducted at the command, including the chain of custody of the urine samples.  Two of these statements were signed by staff sergeants and two statements were sign by sergeants first class.

23.  In a letter from the applicant's wife, dated 7 July 2008, she stated that the applicant has been a dedicated and responsible husband, father, and friend.  The applicant's wife further states he is very loyal in everything he does.  She further asks that her husband's discharge be upgraded.

24.  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 statute of limitations.

25.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of 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.  Paragraph 14-12c(2) of this regulation defines illegal drug abuse as a serious offense.  This regulation provides that first-time drug offenders in pay grades E-5 - E-9 will 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

26.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends clemency is warranted in the upgrading of his general discharge under honorable conditions to an honorable discharge.  He further contends his awards and decorations, promotions, and prior honorable discharges should have been considered.  He further contends he has been a good citizen since his discharge.

2.  Clemency is an act of mercy, or instance of leniency.  The discharge authority in this case did take the applicant's prior honorable discharges, awards and decorations, and all of his prior service into consideration when issuing a general discharge in a case where a discharge under other than honorable conditions was normally considered appropriate.  

3.  In promoting the applicant to staff sergeant, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  In addition, he was assigned as a U.S. Army recruiter wherein he was in a special position of trust and responsibility and his daily actions had a direct impact on the community's view of the U.S. Army.  The applicant violated this special trust and confidence.   

4.  Statements submitted by the applicant, some dated over 15 years ago, were signed by senior noncommissioned officers who questioned the validity and procedures of the command's urinalysis program and the manner in which it was conducted.  However, there is no evidence of formal complaints being filed or a formal investigation being conducted concerning these procedures.  The applicant waived his right to an administrative separation board where these contentions could have been addressed.  Therefore, it must be presumed that the urinalysis program conducted at the command was conducted in accordance with the procedures and regulations in effect at the time.

5.  The applicant contends he has been a good citizen since his discharge.  However, he has submitted no evidence to support this contention.

6.  Although the applicant is requesting a grant of clemency there is no evidence the applicant ever took responsibility for his actions or expressed remorse for his violating the special trust and confidence the Army had placed in him.

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

8.  The applicant has not submitted sufficient evidence in this case to warrant a discharge upgrade based on clemency.

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)                                         AR20080012093



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ABCMR Record of Proceedings (cont)                                         AR20080012093



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