IN THE CASE OF:	  

		BOARD DATE:	        30 DECEMBER 2008

		DOCKET NUMBER:  AR20080017287 


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 an upgrade of his discharge.

2.  The applicant states that his discharge was unjust because he was an exceptional Soldier from the time he entered military service to the time of the incident that led to his discharge.  He adds that he made an error in judgment in 1994 that blemished an otherwise excellent military career.  He also adds that he has learned how bad decisions can turn something good into something bad and that since his discharge he has dedicated his life to not making the same mistake again and has taught his children the same.

3.  The applicant provides three character reference statements, dated on miscellaneous dates in September 2008, in support of 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's records show he enlisted in the Regular Army for a period of 4 years on 10 October 1989.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 75D (Personnel Records Specialist).  The highest rank/grade he attained during his military service was sergeant (SGT)/E-5.

3.  The applicant’s records also show he was awarded the Good Conduct Medal, the National Defense Service Medal, the Army Service Ribbon, the Overseas Service Ribbon, the Noncommissioned Officer Professional Development Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Parachutist Badge.  His records do not show any achievements or significant acts during his military service.

4.  On 22 March 1994, the applicant participated in a unit urinalysis and his urine sample tested positive for marijuana. 

5.  On 7 June 1994, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between the dates of 22 February 1994 and 22 March 1994.  His punishment consisted of reduction from SGT/E-5 to specialist (SPC)/E-4, forfeiture of $619.00 pay per month for one month (suspended until 4 December 1994), and 45 days of extra duty.  

6.  On 17 June 1994, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation (AR) 635-200 (Personnel Separations), for misconduct, abuse of illegal drugs.

7.  On 17 June 1994, the applicant acknowledged receipt of the commander's notification of separations action.  He subsequently consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He elected not to submit a statement on his own behalf and indicated 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.



8.  On 20 June 1994, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of AR 635-200 for misconduct, abuse of illegal drugs.  Specifically, the immediate commander cited the applicant's use of marijuana and positive urinalysis.  The immediate commander further recommended a general, under honorable conditions discharge.

9.  On 28 June 1994, the applicant’s intermediate commander recommended approval of the applicant’s discharge with a general, under honorable conditions discharge.

10.  On 2 July 1994, the separation authority waived the rehabilitative requirements, approved the applicant’s discharge under the provisions of chapter 14 of AR 635-200 by reason of misconduct, and directed the applicant's service be characterized as under honorable conditions.  Accordingly, the applicant was discharged on 1 August 1994.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged with a character of service of under honorable conditions (general).  This form further confirms he completed 4 years, 9 months, and 22 days of creditable military service.

11.  On 12 March 1997, the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge.

12.  The applicant submitted three character reference statements as follows:

	a.  In his statement, dated 12 September 2008, an Emeritus member of the State of South Carolina Senate states that he has known the applicant for many years and can attest to his outstanding morals, congenial disposition, and deep sense of personal responsibility.  He adds that the applicant and his family are well liked and trusted in the community and that they are active in the local church;

	b.  In his statement, dated 26 September 2008, the applicant's senior pastor states that the applicant is a man of impeccable integrity, a good husband and father, and a servant of God, and that despite his recent surgery, he continued to serve the church and devote his time to others; and

	c.  In his statement, dated 18 September 2008, one of the applicant's friends states that he has known him for over 12 years and attests to his unique sense of humor and keen sense of judgment.  He adds that the applicant is an honest and dependable man of his word.

13.  AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

14.  AR 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 contends that his discharge should be upgraded.

2.  The applicant's argument that he was an exceptional Soldier and the character reference statements he submitted were noted.  However, they are insufficient to grant the applicant the requested relief.  

3.  The evidence of record confirms that the applicant was separated under the provisions of chapter 14 of AR 635-200 due to misconduct, commission of a serious offense (drug abuse).  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct – abuse of illegal drugs.  His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant’s use of drugs, in a noncommissioned officer capacity, diminished the quality of his service.



4.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20080017287



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ABCMR Record of Proceedings (cont)                                         AR20080017287



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