IN THE CASE OF:	  

		BOARD DATE:	        19 March 2009

		DOCKET NUMBER:  AR20090000692 


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 an upgrade of his discharge from general to honorable.

2.  The applicant states that he was given a general discharge because he was inadequately represented and that his attorney took the easy way out. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 4 March 1991, in support of his request.

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 records show he enlisted in the Regular Army for a period of 2 years and 20 months on 7 October 1989.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 16P (Chaparral Crewmember).  The highest grade he attained during his military service was private (PV2)/E-2.

3.  The applicant’s awards and decorations include the Army Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Marksman Marksmanship Qualification Badge with Grenade Bar.  His records do not show any achievements and/or significant accomplishments during his military service.

4.  On 15 November 1990, the Air Force Office of Special Investigations District 70 (AFOSI), Frankfurt, Germany, initiated an investigation based on information that the applicant allegedly used hashish on 8 November 1990 and paid for and took delivery of 2 hits of acid on 14 November 1990.  The investigation revealed that the applicant wrongfully used and possessed a controlled substance.

5.  On 16 January 1991, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for two instances of wrongfully using hashish on or about 8 November 1990 and on or about 9 November 1990.  His punishment consisted of reduction to private (PV1)/E-1, a forfeiture of $376.00 pay per month for 2 months, and 45 days of restriction and extra duty. 

6.  On 21 February 1991, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for misconduct, commission of a serious offense (illegal drugs).

7.  On 21 February 1991, the applicant acknowledged receipt of the commander's intent to separate him.  He was offered the opportunity to consult with counsel, but he waived his right to do so.  He was advised by the unit commander of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  The applicant also acknowledged that he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further elected not to submit a statement in his own behalf.

8.  On 21 February 1991, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct, commission of a serious offense (illegal drugs).  The immediate commander further remarked that it was not feasible to accomplish other disposition because it was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the Army would have been successful.

9.  On 21 February 1991, the Area Judge Advocate reviewed the request for the applicant’s discharge and determined that it was legally sufficient.  He further indicated that the applicant was provided with an opportunity to consult with counsel; however, he elected not to do so.  

10.  On 22 February 1991, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct, commission of a serious offense (illegal drugs) and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 4 March 1991.  The DD Form 214 he was issued confirms he was discharged with an under honorable conditions (general) character of service.  This form further confirms he completed a total of 1 year, 4 months, and 28 days of creditable military service.

11.  On 28 May 2004, the Army Discharge Review Board denied the applicant’s request for a change in the discharge character of service and/or the reason for discharge.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant’s discharge was appropriate based on his unlawful abuse of illegal drugs as evidenced by the AFOSI report of investigation.  Additionally, his record of service shows he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for the wrongful use of illegal drugs.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge.

2.  All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.  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 evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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.


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      _______________________
               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)                                         AR20090000692



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ABCMR Record of Proceedings (cont)                                         AR20090000692



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