IN THE CASE OF:	

		BOARD DATE:	  27 January 2009

		DOCKET NUMBER:  AR20080017490 


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 under other than honorable conditions discharge be upgrade to general, under honorable conditions.  

2.  The applicant states, in effect, that the punishment was too harsh for the offense and he has completed 15 years of good conduct.  He also states that he was not properly represented at the time.   

3.  In support of his application, the applicant provides copies of his 1971 United States Coast Guard DD Form 214 (Report of Separation from Active Duty) and his 1987 United States Army DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 United States Coast Guard on 3 May 1971 and was separated on 2 May 1975.  He enlisted in the Regular Army, in pay grade E-4, on 7 January 1976 for 4 years.  

3.  The applicant was promoted to pay grade E-6 on 5 October 1983.  He was released from active duty on 20 October 1983, for the purpose of immediate reenlistment.  He reenlisted on 21 October 1983 for 6 years.  

4.  On 31 January 1985, the applicant's unit commander initiated action barring him from reenlistment.  The unit commander stated that the action was being initiated due to the applicant's negligence in a traffic accident involving a military vehicle, for improperly supervising his subordinates, and the continued decline in his duty performance standards.  The applicant elected not to submit a statement in his own behalf.  The bar was approved on 14 February 1985.

5.  On 21 January 1987, the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on 15 January 1987.  His punishment included extra duty for 10 days.

6.  On 28 January 1987, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for the wrongful use of marijuana and cocaine between 25 October and 25 November 1986, which was detected by biochemical testing of a urine sample submitted on 23 November 1986.  His punishment included a reduction to pay grade E-5, a forfeiture of $363.00 pay per months for two months, and 30 days extra duty.  He did not appeal the punishment and was reduced to pay grade E-5 on 29 January 1987.

7.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contained a copy of his DD Form 214 which shows that he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, on 5 June 1987 for misconduct, commission of a
serious offense.  He was issued an under other than honorable conditions discharge.  He was credited with 11 years, 4 months, and 29 days of net active service.

8.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Separation), 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.  A discharge under other than honorable conditions was normally appropriate. 

10.  Paragraph 14-12c(2) 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-5 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.

11.  Army Regulation 635-200, paragraph 3-7b, also provides 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered; however, they do not support a change to his under other than honorable conditions discharge.  The applicant tested positive for the use of marijuana and cocaine.  He accepted punishment under Article 15 in January 1987 for the offense.  All the facts and circumstances pertaining to the applicant's discharge are unavailable for review; however, it appears that the incident that led to his discharge was a serious act of misconduct 

as the applicant was reduced to the lowest enlisted grade prior to his discharge.  His DD Form 214 identifies the reason and authority for the applicant's discharge and the characterization of his service.

2.  In the absence of evidence to the contrary, Government regularity is presumed.  It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

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

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)                                         AR20080017490



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ABCMR Record of Proceedings (cont)                                         AR20080017490


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