IN THE CASE OF:	  

		BOARD DATE:	  15 January 2009

		DOCKET NUMBER:  AR20080014885 


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, that his general (under honorable conditions) discharge be upgraded to honorable.

2.  The applicant states, in effect, that after a random urinalysis being identified as positive, he received his first ever Article 15 and was removed from the promotion list.  He also states that he never recovered from that.  He was treated unfairly and as a result, he abused alcohol, drugs, and himself.  After being falsely accused, he lost his faith and self-medicated.  He had never been in trouble before that.  Before deploying to Europe, he was a model Soldier, E-4 promotable after 18 months of service, and Soldier of the Month for 4 times.  He finally got clean in 2003 and has been clean for 5 years.  

3.  In support of his application, the applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and his letter from the Army Review Boards Agency (ARBA) Support Division, St. Louis, dated 21 March 2008; copies of his high school diploma; his basic training award; his military course completion certificates; his Soldier of the Month commendation letters; his certificates of achievement; his post-service training completion courses; his Department of Veterans Affairs Rating Decisions; and pictures of himself.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and provides no additional documentation in support of the applicant's request.
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 records show that he enlisted in the Regular Army, in pay grade E-1, on 23 April 1980, for 3 years.  He was promoted to pay grade E-4 on 23 July 1981.

3.  On 28 May 1986, the applicant accepted non-judicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), for the wrongful use of marijuana on 15 April 1986.  His punishment included reduction to pay grade E-3.  The applicant elected to appeal the punishment and submit additional matters.  His appeal was denied on 4 June 1986.

4.  The applicant tested positive for cocaine on 10 November 1986.

5.  On 14 January 1987, the applicant accepted non-judicial punishment under the provisions of Article 15, of the UCMJ, for the wrongful use of cocaine between 3 November and 10 November 1986.  His punishment included a reduction to pay grade E-2 and a forfeiture of $200.00 pay per month for 2 months.  The applicant elected to appeal the punishment.  

6.  The applicant was reduced to pay grade E-2 on 14 January 1987.

7.  On 21 January 1987, the Chief, Criminal Law, Headquarters, Fort Belvoir, Virginia, advised the applicant's commander that coordination with the unit commander indicated that the applicant did not intend to submit matters for 
consideration for his Article 15 appeal.  The Chief concluded that the Article 15 proceedings were conducted in accordance with law and regulation and the punishments were not disproportionate to the offense committed.

8.  The applicant's appeal to the 14 January 1987 Article 15 was denied on 30 January 1987.

9.  On 30 March 1987, the applicant's company commander notified him that he was initiating action to separate him for the commission of a serious offense, abuse of illegal drugs, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c.  He stated, in effect, the reason for the proposed action was that the applicant had tested positive for cocaine.  Paragraph 14-12d, Army Regulation 635-200, authorized discharge based on a discovery of a drug offense for service members in grades E-1 through E-9.  He recommended the applicant receive a characterization of service under other than honorable conditions.

10.  On 7 April 1987, the applicant, after consulting with counsel, acknowledged receipt of notification of the recommendation that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for commission of a serious offense.  He waived consideration of his case by an administrative board and elected not to submit a statement in his own behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  

11.  On 10 April 1987, the applicant's company commander recommended his separation under the provisions of paragraph 14-12c, chapter 14, Army Regulation 635-200.  He recommended the applicant receive a general under honorable conditions discharge.  The company commander stated that the applicant had submitted a conditional waiver whereby he waived his rights to an elimination board so long as the separation authority characterized his service as no less than general under honorable conditions.

12.  On 12 April 1987, the battalion company concurred with the company commander's recommendation in the separation action.  He recommended the applicant's service be characterized as general under honorable conditions.

13.  On 16 April 1987, the appropriate separation authority approved the discharge and directed the issuance of a General Discharge Certificate.  The request for a rehabilitative transfer was waived since it was felt that the applicant was resisting rehabilitation attempts, rendering further duty inappropriate.

14.  The applicant was discharged, in pay grade E-2, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct – commission of a serious offense, with a general discharge, on 1 May 1987.  

15.  In a letter, dated 12 August 2008, the ARBA Support Division, St. Louis advised the applicant that his DD Form 293 could not be processed because the statutory period for appeals prohibited the Army Discharge Review Board (ADRB) from processing applications received after 15 years from the date of discharge or release from active duty.  
16.  Army Regulation 635-200 (Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes 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.  

17.  Paragraph 14-12c of this regulation also provided for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs.  It provided that individuals identified as first time drug abusers, grades E-1 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could 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 was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

18.  Army Regulation 635-200, paragraph 3-7a, further 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.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.  

2.  The applicant's contentions have been considered.  However, the applicant tested positive for marijuana and cocaine.  He accepted punishment under Article 15 in May 1986 and January 1987 for each offense.   The incident that led to his discharge was a serious act of misconduct.  He also signed a conditional waiver and accepted the general discharge so long as the separation authority characterized his service as no less than general under honorable conditions.  The applicant's company commander recommended he receive a characterization of service of under other than honorable conditions.  However, it appears that the applicant's overall record was taken into consideration by the battalion commander and separation authority based on his having received a general discharge, instead of a discharge under other than honorable conditions, which was normally considered appropriate at the time.  It is also noted it was not directed that he be reduced to the lowest enlisted grade as a result of the seriousness of the offense, as he was discharged in pay grade E-2. 

3.  The evidence shows the applicant’s misconduct diminished the quality of his overall service below that meriting a fully honorable discharge.  He was properly separated for his misconduct, for the illegal use of drugs, and he has submitted neither probative evidence nor a convincing argument in support of his request. 

4.  The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

5.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his general discharge.

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)                                         AR20080014885



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ABCMR Record of Proceedings (cont)                                         AR20080014885


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