IN THE CASE OF:	  

		BOARD DATE:	  21 October 2008

		DOCKET NUMBER:  AR20080013035 


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, in effect, reconsideration of his earlier petition for an upgrade of his general discharge (GD), under honorable conditions and for a change to the reason and authority for his discharge. 

2.  The applicant states, in effect, that he would have received a harsher discharge had it not been for the fact that all of the offenses occurred in a six hour period while he was unknowingly under the influence of Lysergic Acid Diethylamide (LSD), and he provides his version of the facts and circumstances surrounding his offenses.  

3.  The applicant provides court-martial deliberation instructions 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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080006946 on 1 July 2008.

3.  During the original deliberations the ABCMR determined that the applicant's discharge was proper and equitable and that the reason and authority for his discharge was appropriate based on his misconduct.  The Board further determined that the applicant’s separation processing was accomplished in accordance with applicable regulation.

4.  The applicant presents court-martial deliberation instructions wherein the military judge instructs the members on the court-martial panel on the theory of “deliberate avoidance."  The instructions contain a statement that indicates, in effect, that the accused must have known that the substance he used was methamphetamine or amphetamine, and that the panel members could not find the accused guilty unless they found beyond a reasonable doubt the accused actually knew he used methamphetamine/amphetamine.

5.  The applicant's military record shows he enlisted in the Regular Army (RA) and entered active duty on 2 August 1988.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Infantryman).  It also shows he was advanced to the rank of private first class (PFC/E-3) on 1 May 1989, and that this was the highest rank he attained while serving on active duty.  It further indicates that he earned the following awards during his active duty tenure:  National Defense Service Ribbon; Armed Forces Expeditionary Medal; Army Service Ribbon; Combat Infantryman Badge; Sharpshooter Marksmanship Qualification Badge with Rifle Bar; and Marksman Marksmanship Qualification Badge with Hand Grenade Bar.  

6.  The applicant’s disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 16 July 1990, for unlawfully striking another Soldier in the head with his boot and for assaulting a noncommissioned officer (NCO) by hitting him in the chest and attempting to close him in between a door.  His punishment for these offenses was a reduction to private/E-1 (PV1), a forfeiture of $362.00 per month for 2 months, and 45 days of restriction and extra duty.  



7.  The applicant’s record contains a Rights Warning Procedure/Waiver Certificate (DA Form 3881) which shows he was informed that he was being investigated for the wrongful possession and use of LSD.  It also contains a final Criminal Investigation Report, dated 1 August 1990, which confirms that there was sufficient evidence to title the applicant for the charges against him and to successfully prosecute him as a result thereof.

8.  On 8 August 1990, the applicant underwent a mental status evaluation.  The results of this evaluation showed that the applicant's behavior and thought content was normal, he was fully alert and oriented, he had an unremarkable mood or affect, his thinking process was clear, and his memory was good.  It was also determined that the applicant was mentally responsible, met retention requirements and had the mental capacity to understand and participate in separation proceedings.

9.  On 1 October 1990, the applicant’s unit commander notified the applicant that action was being initiated to separate him under the provisions of Chapter 14, Army Regulation 635-200, based on numerous acts of misconduct that included his failure to report to his appointed place of duty; writing bad checks and other financial infractions; unlawfully striking another Soldier; bar to reenlistment; being absent without authority from formation during support cycle Guard Mount; and for wrongful possession and use of LSD.

10.  On 3 October 1990, having been advised of the basis for the contemplated separation action, its effects, the rights available to him, and the effect of a waiver of those rights, the applicant completed an election of rights.  He requested consideration of his case and personal appearance before a board of officers and representation by counsel.  The applicant also elected not to make a statement on his own behalf.

11.  On 10 January 1991, an administrative separation board convened to determine if the applicant should be discharged from military service prior to his expiration of normal term of service.  After considering all of the evidence before it, the administrative separation board found the applicant had established a definite pattern of misconduct and recommended he be separated from the Army with a GD.

12.  The separation authority approved the findings and recommendations of the administrative separation board and directed that the applicant be separated under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct, with a GD.  On 4 April 1991, the applicant was discharged accordingly.

13.  The DD Form 214 issued to the applicant upon his discharge on 4 April 1991, confirms he was separated under the provisions of Paragraph 14-12c, Army Regulation 635-200, by reason of misconduct – abuse of illegal drugs.  It also shows that he completed a total of 2 years, 8 months, and 3 days of creditable active military service, and that he held the rank of PV1 at the time of his discharge.  

14.  The applicant's record is void of any indication that he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  

15.  Army Regulation 635-200 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.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An honorable or general discharge may be awarded; however, an under other than honorable conditions (UOTHC) discharge is normally considered appropriate for members separated under these provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his request for an upgrade of his GD should be reconsidered based on his submission of the court martial deliberation instructions that he now submits has been carefully considered.  However, the applicant was separated through an administrative board process that is not governed by the same rules of evidence of a court-martial and under which findings are based on the preponderance of the evidence and not beyond a reasonable doubt.  Accordingly, the deliberation instructions that refer to “deliberate avoidance” are not applicable in this case.

2.  The applicant's assertions that given the seriousness of his offenses, he should have received a more harsh discharge if it had not been for the fact all of the offenses occurred within a six hour period were also considered.  However, the applicant's commander cited an extensive record of misconduct that included failure to report to his appointed place of duty, writing bad checks and other financial infractions, unlawfully striking another Soldier, bar to reenlistment, being absent without authority from formation during support cycle Guard Mount, and for wrongful possession and use of LSD as the basis for the applicant's separation processing.  Although, the separation authority elected to issue the applicant a GD based on his overall record of service, which included combat service, his misconduct, even if it occurred in a short period, clearly diminished the overall quality of his service below that meriting a fully honorable discharge. 

3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.   

4.  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 this requirement or that would support amendment of the original Board decision in this case.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20080006946 dated 1 July 2008.




      _______ _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)                                         AR20080006946



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ABCMR Record of Proceedings (cont)                                         AR20080013035


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