IN THE CASE OF:	  

		BOARD DATE:	        05 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017926 


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 general discharge be upgraded to an honorable discharge.

2.  The applicant essentially states that his discharge should be upgraded because it has been over 17 years since his discharge, and that he wants to rejoin the United States Army Reserve (USAR).  

3.  The applicant provides no additional evidence 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 that he enlisted in the USAR on 
28 August 1989.  He entered active duty for training on 2 November 1989, completed basic and advanced individual training, and was awarded military occupational specialty 76Y (Unit Supply Specialist).  He was released from active duty on 16 March 1990 and reverted back to the 304th Military Police Company.  

3.  Although the applicant's complete separation packet was not contained in his military records, the available evidence shows that the applicant tested positive for cocaine during a urinalysis that was conducted on 11 April 1990 and tested on 17 April 1990.  It also shows that on 11 October 1990, the applicant's commanding officer recommended that he be separated from the USAR under the provisions of Army Regulation 135-178 (Separation of Enlisted Personnel).  The applicant’s commander also recommended that the applicant be discharged under honorable conditions.  The reason for his proposed action was the applicant's positive drug urinalysis, his failure to enter a State-certified drug rehabilitation program as required, and his poor retention potential.  Additionally, the available evidence shows that prior to recommending the applicant's discharge, his commander mailed correspondence to the applicant via certified mail informing him of his rights, and allowed him to make elections in regards to his pending separation action, but there is no indication that the applicant signed and returned any of the correspondence that was mailed to him.

4.  Orders, dated 21 May 1991, discharged the applicant from the USAR effective that date, and show that he was issued a DD Form 257A (General Discharge Certificate Under Honorable Conditions).

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

6.  Army Regulation 135-178 (Army National Guard and Army Reserve, Separation of enlisted Personnel), in effect at the time, provided that a Soldier who had been referred to a program of rehabilitation for personal drug or alcohol abuse could be separated for rehabilitation failure through inability or refusal to participate in, cooperate in, or successfully complete such a program if there was a lack of potential for continued Army service, or rehabilitation efforts were no longer practical.  The service of Soldiers discharged under these provisions was to be characterized as honorable or under honorable conditions unless an entry level separation was required.  

7.  Army Regulation 135-178 provided, in pertinent part, that an honorable characterization of service was appropriate when the quality of the Soldier's service generally had met the standards of acceptable conduct and performance of duty for military personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

8.  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 general discharge should be upgraded to an honorable discharge.

2.  The applicant's contention that his discharge should be upgraded because it has been over 17 years since his discharge was considered.  However, there has never been a provision of regulation which provided that a discharge would be upgraded after a certain amount of time, and the ABCMR does not upgrade discharges based solely on the passage of time.

3.  The fact that the applicant wishes to rejoin the USAR is commendable.  However, 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 and, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

4.  The applicant’s record of illicit drug abuse does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable 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)                                         AR20080017926



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ABCMR Record of Proceedings (cont)                                         AR20080017926



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