IN THE CASE OF:	

		BOARD DATE:	  26 February 2009

		DOCKET NUMBER:  AR20080017658 


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 under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he knows he made a mistake and that what he did was wrong.  He states he is now trying to go back to school and he needs an honorable discharge in order to use his Montgomery GI Bill (MGIB) benefits.

3.  The applicant provides a DD Form 293 (Application for the Review of discharge from the Armed Forces of the United States) 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 military personnel records show he enlisted in the Regular Army on 25 September 1998 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) of 92G (Food Service Specialist).  He reenlisted on 
28 February 2001.

3.  On 14 May 2001, the applicant was counseled concerning his being drunk on duty on 14 May 2001 and conduct unbecoming of a Soldier.  He was advised that continued misconduct could be cause for separation and that he could receive a discharge under other than honorable conditions which may reflect on his eligibility for veterans benefits.

4.  On 4 June 2001, the applicant was counseled concerning his failure to report for duty at the prescribed time.  He was again advised that continued misconduct could be cause for separation and that he could receive a discharge under other than honorable conditions which may reflect on his eligibility for veterans benefits.

5.  On 12 June 2001, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being found drunk on duty on 14 May 2001.

6.  On 3 August 2001, the applicant, after having waived his rights, made a sworn statement to an investigator from the U.S. Army Criminal Investigation Command (USACIDC).  In his statement, the applicant admitted to the purchase, consumption, sale, and distribution of illegal drugs.

7.  On 29 October 2001, the applicant's commander notified the applicant he was initiating action under the provisions of Chapter 14 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) to separate the applicant from the Army due to his pattern of misconduct.  The commander stated his reasons for the action were the applicant being found drunk on duty, his failure to report, and his admission to the purchase, consumption, and distribution of illegal drugs.  The commander stated he was recommending the applicant for a general, under honorable conditions discharge.

8.  The commander advised the applicant of his right to submit statements in his own behalf, to obtain copies of documents that will be sent to the separation authority supporting his proposed separation, and to consult with consulting counsel and/or civilian counsel at no expense to the Government within a reasonable time.  The commander further advised the applicant that he may waive any of these rights in writing and he could withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.  

9.  On 29 October 2001, the applicant acknowledged receipt of the notification of separation action and submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Chapter 14 of Army Regulation 635-200 due to a pattern of misconduct.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.  The applicant also acknowledged that, as the result of the issuance of a discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life.

10.  On 29 October 2001, the applicant's commander recommended him for discharge due to a pattern of misconduct and that his service be characterized as under honorable conditions.  The commander's reasons for the recommendation were the applicant's being found drunk on duty, his failure to report, and his admitted involvement in the purchase, consumption, and distribution of illegal drugs.  The commander also recommended waiver of a rehabilitative transfer based on the applicant's pattern of misconduct to include the admitted consumption and distribution of illegal drugs.

11.  On 1 November 2001, the appropriate authority approved the recommendation for discharge due to a pattern of misconduct, waived the requirement for rehabilitative transfer, and directed the applicant's service be characterized as under honorable conditions.

12.  On 13 November 2001, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to a pattern of misconduct.  He had completed 3 years, 1 month, and 19 days active service that was characterized as under honorable conditions.

13.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 16 August 2002, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under honorable conditions.

14.  Army Regulation 635-200, then in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, established policy and prescribed procedures for separating members for misconduct.  Paragraph 14-12b provided for the separation of a Soldier due to a pattern of misconduct.  

15.  Army Regulation 635-200 (Personnel Separations) 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.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

2.  The applicant's admitted involvement in the purchase, consumption, and distribution of illegal drugs did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits.  The granting of benefits under the MGIB is not within the purview of the ABCMR and any questions regarding eligibility for these benefits should be addressed to the Department of Veterans Affairs (VA).

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 that 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)                                         AR20080017658





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ABCMR Record of Proceedings (cont)                                         AR20080017658



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