IN THE CASE OF:	  

		BOARD DATE:	       10 February 2009

		DOCKET NUMBER:  AR20080017242 


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 be upgraded to honorable.

2.  The applicant states that he was told it could be upgraded.  It happened more than 10 years ago, but it still hampers his employability.

3.  The applicant provides no documents to substantiate his 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 enlisted on 16 May 1985, completed initial training and was awarded military occupational specialty 31C (radio teletype operator).  He progressed to the rank of specialist, pay grade E-4 and reenlisted on 6 October 1988.  

3.  On 24 January 1989, the applicant submitted a urine sample that tested positive for cocaine. 

4. The applicant was reduced to pay grade E-1 on 1 July 1989, and the       details surrounding the reduction are not contained in the available record.  On   1 January 1990, the applicant was again advanced to specialist (E-4). 

5.  On 28 December 1990, the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for wrongfully using cocaine between 21 and 24 September 1990.  The punishment consisted of reduction to pay grade E-1 and 14 days of extra duty.

6.  At a mental status evaluation, on 21 June 1991, the applicant's behavior was determined to be normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant had the mental capacity to understand and participate in separation proceedings.  He was mentally responsible, did not require referral for medical treatment and he was psychiatrically cleared for administrative action deemed appropriate by the command. 

7.  On 15 July 1991,having consulted with counsel, the applicant responded to contemplated separation action for illegal drug abuse with a conditional offer to waive his administrative processing rights provided he received a general discharge.  In his response, he acknowledged that he could expect to encounter substantial prejudice in civilian life as a result of the general discharge and that he might be ineligible for many or all benefits under Federal and state laws.  He also indicated that he understood he could apply to the Army Discharge Review Board or to this Board and that he was ineligible to apply for enlistment in the Army for a period of 2 years.

8.  The separation authority accepted the applicant's offer and, on 16 August 1991, he was separated with a general discharge under honorable conditions, under the provisions of Army Regulation 635-200, paragraph 14-12c due to misconduct by abuse of illegal drugs.  He had completed 6 years, 3 months and 1 day of creditable active duty service and he had no lost time.  

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the 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.  Individuals in pay grades E-5 and above must 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.

10.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that the discharge should be upgraded because it happened more than 10 years ago and it hurts his employability.

2.  The applicant's offer to waive his administrative processing rights in exchange for a general discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the possibility of a less advantageous discharge than he might have received.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  In fact, separation processing was required and he voluntarily requested the discharge characterization he ultimately received.  There was no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  There is no documentation to support the applicant's contention and no rational to support the implied conclusion that the alleged circumstances would warrant the requested relief.

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)                                         AR20080017242



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ABCMR Record of Proceedings (cont)                                         AR20080017242



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