IN THE CASE OF:	  

		BOARD DATE:	       16 JUNE 2009

		DOCKET NUMBER:  AR20090001442 


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.

2.  The applicant states that during the last few months of his military service, he was under stress due to separation from his children and spouse, his father's multiple heart attacks, and his inability to assist his family because of his military service. 

3.  The applicant did not provide any additional documentary evidence 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 3 years on 14 January 1987.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  He also executed a 5-month extension on 27 July 1987 and a 4-year reenlistment on 18 January 1990.  He was assigned to the Noncommissioned Officer Academy (NCOA), Fort Huachuca, AZ, and attained the rank of specialist four (SP4)/E-4.

3.  The applicant’s record further shows he served in Germany from on or about 5 June 1987 through on or about 24 May 1990.  His awards and decorations include the National Defense Service Medal, the Army Achievement Medal, the Good Conduct Medal, the Army Service Ribbon, the Overseas Service Ribbon, the NCO Professional Development Ribbon, and the Expert Marksmanship Qualification Badge with Rifle Bar.

4.  On 15 November 1991, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to private first class (PFC)/E-3 (suspended until 16 February 1992), a forfeiture of $500.00 pay per month for one month (suspended until 16 February 1992), and 14 days of extra duty. 

5.  On or about 18 February 1992, the applicant participated in a unit urinalysis and his urine sample tested positive for cocaine.

6.  On 8 April 1992, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for wrongfully using cocaine.  His punishment consisted of a reduction to private (PV2)/E-2 and a forfeiture of $440.00 pay per month for 2 months (one month suspended until 6 June 1992).

7.  On 10 June 1992, 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) for misconduct, citing his wrongful use of cocaine.

8.  On 12 June 1992, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct and its effect; of the rights available to him and the effect of any action taken by him in waiving his rights; and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant further requested consideration of his case by an administrative separation board, if eligible, and appearance before an administrative separation board.  He further elected not to submit a statement on his own behalf.

9.  On 12 June 1992, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct.  He recommended an under honorable conditions (general) character of service.

10.  On an unknown date in June 1992, the applicant’s intermediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(c) of Army Regulation 635-200 with an under honorable conditions (general) discharge. 

11.  On 8 July 1992, the applicant’s senior commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(c) of Army Regulation 635-200 with an under honorable conditions (general) discharge. 

12.  On 18 July 1992, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed the applicant be furnished a general, under honorable conditions discharge.  On 21 July 1992, the applicant was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with a character of service of under honorable conditions (general).  This form further confirms that he completed a total of 5 years, 6 months, and 8 days of creditable active military service. 

13.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15 year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.
15.  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 applicant contends that his general discharge should be upgraded.

2.  There is no evidence in the available records and the applicant did not provide any evidence that shows he was under stress due to separation from his children and spouse and/or his father's multiple heart attacks.  Furthermore, there is no evidence that the applicant addressed such issues with his chain of command or support channels.

3.  The evidence of record shows that the applicant’s discharge was appropriate based on his unlawful abuse of illegal drugs as evidenced by testing positive for cocaine when participated in a unit urinalysis.   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.

4.  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.




      _______ _   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)                                         AR20090001442



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ABCMR Record of Proceedings (cont)                                         AR20090001442



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