IN THE CASE OF:	  

		BOARD DATE:	        02 APRIL 2009

		DOCKET NUMBER:  AR20080019081 


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 he joined the military to better his life, but that he followed the wrong crowd with no direction from his superiors.  He also states, in effect, that he was discharged for getting involved in drugs, and that he was simply put on a bus without being given a second chance or any type of treatment.  He further contends that he was beaten by his platoon sergeant for being from New York, and that he received no justice after he reported the incident.  Additionally, he contends that his drug tests seemed to be flawed.

3.  The applicant provides a self-authored statement, dated 7 November 2008; his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 4 October 1982 to 20 January 1983; his DD Form 214 for the period 27 January 1987 to 15 March 1988; a letter, dated 7 November 2008, from the Clerk of the Court, Seventh Judicial Circuit, Volusia County, Florida, with an eight-page report; his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service); and 93 additional pages of his military personnel and medical records 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 New York Army National Guard (NYARNG) on 7 June 1982.  He entered active duty for training (ADT) on 4 October 1982, completed initial entry training, and was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Crewman).  He was released from ADT on 20 January 1983.  On 30 November 1983, he was discharged from the NYARNG under honorable conditions and transferred to the United States Army Reserve (USAR) Control Group (Annual Training).  On 16 December 1986, he enlisted in the USAR Delayed Entry Program and enlisted in the Regular Army on 27 January 1987.  He was then assigned to Fort Ord, California.

3.  The applicant's military records contained numerous counseling statements which show that between March 1987 and October 1987 he was counseled for missing accountability formations, sleeping after first call, failing to be at his prescribed place of duty, violating his quarters profile, leaving an accountability formation, sleeping during duty hours, missing a physical fitness test, failing to follow instructions, disobeying lawful orders, absenting himself from his appointed place of duty, and lying about taking a urine test.

4.  On 5 October 1987, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine on or about 14 July 1987.  His punishment consisted of reduction in rank and pay grade from private/E-2 to private/E-1, forfeiture of $320.00 pay per month for 2 months which was suspended but later vacated, extra duty for 
45 days, and restriction for 45 days.

5.  On 14 October 1987, a bar to reenlistment was imposed on the applicant.

6.  On 8 December 1987, a mental status evaluation was conducted on the applicant and he was essentially cleared for any administrative action deemed appropriate by his command.  A physical examination was also completed on him on this date and he was found medically qualified for discharge.

7.  On 23 December 1987, the applicant went absent without leave (AWOL) and he remained in this status until he surrendered to military control on 8 January 1988.  On 16 January 1988, he again went AWOL and he remained in this status until he surrendered to military control on 18 January 1988.

8.  On 8 February 1988, the applicant accepted NJP under Article 15 of the UCMJ for wrongfully using cocaine on or about 20 October 1987 and for absenting himself without authority from his unit on or about 23 December 1987 and remaining so absent until on or about 8 January 1988.  His punishment consisted of forfeiture of $320.00 pay per month for 2 months, extra duty for 45 days, and restriction for 45 days.

9.  On 19 February 1988, the applicant's commanding officer notified him of his intention to initiate action to discharge him from the United States Army under the provisions of paragraph 14-12c(2), Army Regulation 635-200 (Enlisted Personnel), for multiple offenses, most notably for wrongfully using cocaine on two occasions.  He also recommended that the applicant receive a general discharge and advised him of his rights, which included consulting with counsel.

10.  On 19 February 1988, the applicant acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for the commission of a serious offense 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.

11.  In his statement in his own behalf, the applicant essentially stated that he had done a lot of wrong for which he was very sorry, that he never did drugs as a civilian, but that he started using drugs a few months after being with his unit.  He also stated that he stopped using the drug and realized that it could ruin his marriage and Army career.  He also hoped for a second chance to show that he could be a good Soldier.  He provided a statement from a squad leader who essentially recommended that everything possible be done to assist the applicant in staying in the service, and that he felt the applicant should be given one final chance in the Army.

12.  On 3 March 1988, the proper separation authority approved the applicant's elimination under the provisions of paragraph 14-12c(2), Army Regulation 
635-200, and directed that he receive a general discharge.  On 15 March 1988, the applicant was discharged accordingly.
13.  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.

14.  The applicant provided a self-authored letter, dated 7 November 2008, in which he reiterated his earlier contentions and added that at no time did he receive any type of treatment or counseling.  He also stated that since leaving the Army, he has worked successfully as a plumber for 19 years and that he is married with three children.  He contends that he is a good father and a tax-paying, law abiding citizen who does not have a felony record.  Additionally, he contends that he was not allowed to serve his country because of his superiors' prejudices, he was not guided in any positive manner to become a good Soldier, and that he was just a young kid who needed their guidance but did not receive it.

15.  A Consultation Sheet, initially dated 27 October 1987, essentially shows that the clinical director of the Fort Ord Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) requested that the applicant be medically evaluated in accordance with Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program) to determine whether serious medical illness was indicated because of drug use.  He also stated that the applicant was requesting further treatment.  The psychiatrist who evaluated the applicant found that his mental status was essentially within normal limits and indicated that the applicant was going to self-refer himself to Community Mental Health Services.

16.  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.

17.  Army Regulation 635-200 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.  

18.  This same regulation provides, in pertinent part, 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 contends that his general discharge should be upgraded to an honorable discharge.

2.  The applicant's contention that he was simply put on a bus without being given a second chance or any type of treatment was considered, but found to lack merit.  The applicant was likely referred to the ADAPCP after he initially tested positive for cocaine and the evidence shows he was counseled by an ADAPCP counselor prior to having a medical evaluation requested by the ADAPCP clinical director on 27 October 1987.  

3.  The applicant's contention that he was beaten by his platoon sergeant was also considered; however, he provided no evidence to substantiate his claim.  Additionally, his contention that his drug tests seemed to be flawed is just that – his contention, as he provided no evidence to support his claim that his drugs tests were flawed.

4.  The applicant's contentions regarding his post service achievements and conduct were considered.  However, good post service conduct alone is not a basis for upgrading a discharge.

5.  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.

6.  The evidence of record shows that the applicant twice accepted NJP under Article 15 of the UCMJ for wrongfully using cocaine and that he did not demand trial by court-martial as was his option if he believed he was innocent.  It also shows 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.

7.  The applicant's entire record of service was considered.  However, by  wrongfully using cocaine on two occasions and being AWOL on two separate occasions, his record of indiscipline so far outweighs his record of service that an upgrade of his discharge cannot be justified.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

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)                                         AR20080019081



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ABCMR Record of Proceedings (cont)                                         AR20080019081



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