IN THE CASE OF:	  

		BOARD DATE:	        19 FEBRUARY 2009

		DOCKET NUMBER:  AR20080016939 


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 discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant essentially states that the characterization of his service was too harsh, and that it is a barrier towards his advancement and employment.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued at the time of his discharge on 26 July 1993, which will simply be referred to as his DD Form 214 throughout the remainder of these proceedings, and a letter, dated 19 September 2008, from the American Legion in support of this 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 records show after having previously served in the Regular Army from 18 December 1975 to 15 December 1978, he again enlisted in the Regular Army on 2 October 1989.  He completed basic and advanced individual training and was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).  He completed a tour in Germany from 3 April 1990 to 8 May 1992, then was reassigned to Fort Campbell, Kentucky for what would be his final permanent duty station.

3.  The applicant was classified as absent without leave (AWOL) on 
16 December 1992.  On 31 January 1993, he again went AWOL, and he remained in this status until he returned to military control on 28 February 1993.  While he was AWOL, the applicant was charged by civil authorities on 
20 February 1993 with possession of cocaine.

4.  On 11 March 1993, the applicant's duty status was changed from present for duty to confinement by civil authorities, and he remained in this status until he was released on 7 April 1993.  

5.  On 13 May 1993, the applicant's company commander informed him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 14 (Separation for Misconduct), Paragraphs 14-12b (Pattern of misconduct) and 14-12c (Commission of a serious offense).  The reasons for his proposed action were the applicant testing positive for cocaine on 2 March 1993, being arrested for possession of cocaine on 20 February 1993, and being AWOL from 16 until 
17 December 1992 and again from 31 January 1993 until 28 February 1993.  He also recommended that the applicant receive a general discharge.  He further advised the applicant of his rights, which included requesting a hearing before an administrative separation board.  The applicant acknowledged receipt later that same day.

6.  The applicant underwent a medical examination on 26 April 1993 and a mental status evaluation on 27 April 1993, and he was essentially cleared for any administrative action deemed appropriate by his command.

7.  On 28 June 1993, the applicant acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to separate him for a pattern of misconduct and commission of a serious offense under the provisions of Army Regulation 635-200, Chapter 14, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  He also understood that if he had 6 years of total active and reserve military service at the time of separation and was being considered for separation under the provisions of Chapter 14 of Army Regulation 635-200, he was entitled to have his case heard by an administrative separation board.  He waived consideration of his case and personal appearance before an administrative separation board, and elected not to submit statements in his own behalf.  He also waived consulting counsel or representation by Trial Defense Service.  He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  Additionally, he acknowledged that he understood that, as the result of the 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, and that he could expect to encounter substantial prejudice in civilian life.

8.  On 20 July 1993, the proper separation authority approved the applicant's discharge under the provisions of Chapter 14, Army Regulation 635-200, and directed that his characterization of service would be categorized under other than honorable conditions.  On 26 July 1993, the applicant was discharged accordingly.

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

10.  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 included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.  

11.  Army Regulation 635-200 also provides, in pertinent part, 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.

12.  This regulation further provides, in pertinent part, that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

13.  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.  This 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 that his discharge under other than honorable conditions should be upgraded to an honorable discharge.

2.  The applicant's contention that the characterization of his service was too harsh was noted; however, a discharge under other than honorable conditions is the normally assigned characterization of service for a Soldier discharged due to a pattern of misconduct and/or commission of a serious offense.

3.  The applicant's contention that his discharge under other than honorable conditions is a barrier towards his advancement and employment was also noted.  However, there are no provisions for upgrading a discharge solely for the purpose of improving a person's employment prospects.

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.

5.  The evidence of record shows that the applicant was AWOL on two occasions, and that during his second period of AWOL, he was charged by civil authorities with possession of cocaine and later sentenced to civil confinement as a result of this offense.  His discharge was based upon these facts, and the applicant failed to provide any evidence which proves that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or 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.




      _______ _ XXX  _______   ___
               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)                                         AR20080016939



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ABCMR Record of Proceedings (cont)                                         AR20080016939



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