BOARD DATE:	  13 August 2009

		DOCKET NUMBER:  AR20080018575 


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, under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states that his discharge should be upgraded because he is currently without a job and he is looking for employment.  He feels that his characterization of service may affect or keep him from getting some jobs. 

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 Regular Army (RA) on 4 May 1984.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 64C (Motor Transport Operator).  After serving a tour in Germany from 12 September 1984 to 30 August 1987, he attended training at Fort Lee, Virginia and he was awarded MOS 76C (Equipment Records and Parts Specialist).  He was reassigned to Fort Polk, Louisiana in January 1988.

3.  On 27 September 1989, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine between on or about 6 June 1989 and on or about 12 June 1989.  His punishment consisted of a reduction in rank and pay grade from sergeant (SGT)/E-5 to specialist four (SP4)/E-4, forfeiture of $483.00 pay per month for
2 months, and extra duty for 45 days.

4.  On 1 November 1989, the applicant's commanding officer notified him that he was initiating separation action on him under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c (Commission of a serious offense) because of his wrongful use of cocaine.  He also advised the applicant of his rights.

5.  On 1 November 1989, the applicant acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to separate him for misconduct under the provisions of chapter 14 (Separation for Misconduct), Army Regulation 635-200, and its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  It is unclear whether or not the applicant waived his right to counsel, but he elected to submit statements in his own behalf.  He also acknowledged that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

6.  In the applicant's statement, he essentially requested to be retained on active duty based on his military record, performance, and the circumstances surrounding his cocaine abuse.  In the alternative, he requested that he be honorably discharged if his request to remain on active duty was denied.  He also stated that he was one of the honor graduates during both basic combat and advanced individual training.  He continued by claiming that the only evidence as to why his urinalysis was positive for cocaine was an incident on 10 June 1989 at a nightclub in Houston, Texas.  While at the nightclub, the applicant contended that an unknown substance was put in his drink without his knowledge or consent, and that a female friend of his noticed his abnormal behavior after 
consuming only two beers.  He also enclosed an article that he obtained from his 
military counsel on unknowing oral ingestion resulting in positive urinalysis tests for cocaine on military personnel and private-sector employees.  He also enclosed a progress report from the Fort Polk Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) which stated his progress in the ADAPCP showed that he was not a drug abuser/user.

7.  In an undated correspondence, the proper separation authority approved the applicant's separation under the provisions of chapter 14, Army Regulation 
635-200 and waived further counseling and rehabilitative requirements.  He also directed that the applicant be issued a General Discharge Certificate.  On 
1 December 1989, the applicant was discharged accordingly.

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense to include abuse of illegal drugs, convictions by civil authorities, and absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.  It also states, in pertinent part, that abuse of illegal drugs is a serious offense and that Soldiers are subject to separation under this paragraph for commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely-related offense under the Manual for Courts-Martial.

10.  Army Regulation 635-200, paragraph 3-7a provides, in pertinent part, 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.  The applicant contends that his general, under honorable conditions discharge should be upgraded to an honorable discharge.

2.  The fact that the applicant wishes to have his discharge upgraded to improve his employment prospects was noted.  However, the ABCMR does not grant requests for upgrade of discharges solely for the purpose improving a person's employment opportunities.

3.  Evidence of record shows that the applicant accepted NJP under Article 15 of the UCMJ for wrongfully using cocaine and that he did not demand trial by court-martial as it was his option to do if he believed he was innocent.  Records also show that he was discharged for the abuse of illegal drugs, which is a serious offense, and the applicant failed to provide evidence which shows that any requirements of law and regulation were not met or that his rights were not fully protected throughout the separation process.  As a result, regularity must be presumed in this case.

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 this requirement.  Additionally, as the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel, 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.



      __________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)                                         AR20080018575



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ABCMR Record of Proceedings (cont)                                         AR20080018575


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