IN THE CASE OF:	  

		BOARD DATE:	  3 March 2009

		DOCKET NUMBER:  AR20080016400 


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 (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that his discharge should be upgraded because he only tested positive on a urinalysis and he alleges that the urinalysis was conducted incorrectly.

3.  The applicant provides no supporting documentary evidence 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 record shows he enlisted in the Regular Army and entered active duty on 13 November 1985.  He successfully completed basic training at Fort Jackson, South Carolina, and advanced individual training (AIT) at Fort Gordon, Georgia.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 31C (Single Channel Radio Operator).

3.  The applicant's record shows he was promoted to private first class on 1 December 1986, and that this is the highest rank he attained while serving on active duty.

4.  The applicant's record further shows that during his active duty tenure he received the Army Service Ribbon.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

5.  The applicant's record reveals a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 11 August 1987 for wrongfully using cocaine. His punishment for this offense was a reduction to private/E-1 (PV1), forfeiture of $329.00 for 2 months, and 45 days of extra duty and restriction.

6.  On 2 May 1987, the applicant was arrested for driving under the influence (DUI) by civil authorities and on 7 May 1987, he was found guilty of this offense in a civil court.  He was sentenced to 5 days in jail and a fine of $725.00.

7.  On 24 August 1987, the applicant was informed of his unit commander's intent to process him for separation under the provisions of paragraph 14-12c, Army Regulation 635-200 (Personnel Separations), by reason of misconduct – commission of a serious offense (abuse of illegal drugs).  The unit commander cited the applicant's wrongful use of cocaine and his civil arrest and conviction for DUI as the basis for taking the action.

8.  On 6 October 1987, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects and of the rights available to him, and he waived his right to an administrative separation board and to consulting counsel.

9.  On 16 October 1987, the separation authority approved the applicant's discharge and directed that the applicant receive an under other than honorable conditions (UOTHC) discharge.

10.  On 27 October 1987, the applicant was discharged after completing a total of 1 year, 11 months, and 13 days of active military service and accruing 2 days of time lost due to civil confinement.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he held the rank of PV1 on the date of his discharge and that he was separated under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of misconduct – abuse of illegal drugs.  Contrary to the approval of a UOTHC discharge by the separation authority, item 24 (Character of Service) shows he received a GD.

11.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Although a UOTHC conditions discharge is normally appropriate for a Soldier discharged under this chapter, the separation authority may issue a GD or HD if warranted by the member's overall record of service.

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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to an HD because he only tested positive on a urinalysis that was conducted incorrectly was carefully considered.  However, there is insufficient evidence to support this claim.

2.  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.  It further shows that the separation authority directed that the applicant receive a UOTHC discharge, which was appropriate based on the regulatory guidance.  Further, the applicant's record of military 

service was not sufficiently meritorious for the separation authority to support an HD or GD at the time of his discharge, nor does it support an upgrade at this time.  However, contrary to the directive of the separation authority that the applicant receive a UOTHC discharge, the DD Form 214 he was issued shows his characterization of service as under honorable conditions, general, and that he received GD.

3.  Given that this Board's policy is to presume government regularity in the information contained on a DD Form 214 and not to recommended a more unfavorable outcome based on an application submitted, no further action will be taken on the GD issued and documented on the applicant's DD Form 214, even though it appears to have been the result of an administrative error.

4.  Further, even if the GD was properly issued based on documentation not on file in the record, the applicant's abuse of illegal drugs and civil conviction for DUI clearly diminished the overall quality of his service below that warranting a fully honorable discharge.  As a result, it is clear his overall record of service does not support an upgrade of his discharge to an HD.

5.  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.

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)                                         AR20080016400



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ABCMR Record of Proceedings (cont)                                         AR20080016400



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