IN THE CASE OF:	

		BOARD DATE:	  21 April 2009

		DOCKET NUMBER:  AR20080018889 


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.

2.  The applicant states, in effect, that he was informed that if he attended drug rehabilitation classes, his discharge would be upgraded following his date of separation from active duty.  The applicant states that in spite of attending the classes, his discharge did not change.  The applicant believes he is entitled to an upgrade because he served honorably for almost 6 years.  He concludes that a discharge of this nature is an embarrassment for any Soldier.

3.  The applicant provides no documentary 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 enlisted in the U.S. Army Reserve under the Delayed Entry Program on 1 August 1979 and enlisted in the Regular Army on 13 June 1980.  He completed basic combat training and advanced individual training.  Upon completion of advanced individual training, he was awarded military occupational specialty 64C (Motor Transport Operator).  The applicant completed his initial enlistment with an honorable characterization of service and was allowed to reenlist on 1 April 1983.  The highest rank he attained while serving on active duty was the rank of specialist/pay grade E-4.  However, at the time of separation he held the rank of private first class/pay grade E-3.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for knowingly and wrongfully using marijuana.

4.  The applicant's record also contains documentation of numerous adverse counseling sessions for his failure of the Army Physical Fitness Test, his failure to pay his telephone bill, and his failure to pay his outstanding debts to three creditors.

5.  Fort Hood Form 1313 (Alcohol/Drug Abuse Prevention and Control Program (ADAPCP) Enrollment) shows the applicant's immediate supervisor referred him to the ADAPCP on 22 January 1986.  Item 8 (Commander's Recommendation) of this form shows that on 27 January 1986, the applicant's unit commander recommended that he be subjected to the command-directed urine surveillance program.  The commander did not indicate that the applicant needed alcohol and/or drug education.  Item 11 (Actions taken by the ADAPCP) shows the applicant was returned to duty as no further action was required.  The ADAPCP did not enroll the applicant in a drug education class nor did they place him in either the resident or non-resident rehabilitation program.

6.  On 28 February 1986, the applicant’s unit commander notified him that he was initiating action which may result in his separatation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, paragraph 14-12d, for misconduct.  The unit commander informed the applicant that his proposed separation could result in discharge, release from active duty to a reserve component, or release from custody and control of the Army.  The unit commander also informed the applicant that the least favorable characterization of service that he could receive was "General (Under Honorable Conditions)."  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, to waive these rights in writing, and to withdraw his waiver of any of these rights at any time prior to the date the discharge authority directed or approved his separation.  On 28 February 1986, the applicant acknowledged receipt of the unit commander's notification.

7.  On 28 February 1986, the applicant’s unit commander recommended that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12d, for misconduct.  The commander cited the applicant's receipt of NJP under the provisions of Article 15 of the UCMJ on two occasions for knowingly and wrongfully using marijuana as the specific factual reasons for this action.

8.  On 5 March 1986, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he elected to submit statements in his behalf, and to receive copies of documents that would be sent to the separation authority supporting the proposed separation.  The applicant also acknowledged his understanding that if he were issued a general discharge under honorable conditions, he could expect to encounter substantial prejudice in civilian life.

9.  On 18 March 1986, the separation authority approved the unit commander's request, directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 14, and directed that he be furnished a general discharge.

10.  On 27 March 1986, the applicant was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time shows that he received an "Under Honorable Conditions" characterization of service.  Block 25 (Separation Authority) shows that he was discharged under the provisions of paragraph 
14-12c of Army Regulation 635-200.  Block 26 of this form shows he was assigned a Separation Program Designator code of "JKK."  Block 28 (Narrative Reason for Separation) shows "Misconduct - drug abuse."

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may 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 is normally considered appropriate.

13.  Army Regulation 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his general discharge should be upgraded based upon the fact that the majority of his service was honorable was carefully considered and determined to lack merit.

2.  The record shows the applicant had multiple disciplinary infractions.  In spite of his indiscipline, the applicant's chain of command was willing to allow the applicant to remain on active duty and continue to serve.  Evidence shows the applicant was not responsive to the rehabilitative efforts of his command.

3.  The evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable discharge.

5.  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 any evidence that would satisfy this requirement and there is no basis for granting his request.


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)                                         AR20080018889



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ABCMR Record of Proceedings (cont)                                         AR20080018889



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