IN THE CASE OF:	  

		BOARD DATE: 	       25 June 2009

		DOCKET NUMBER:  AR20090003322 


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, an upgrade of the characterization of service and a change of the narrative reason for separation on his under other than honorable conditions (UOTHC) discharge.  

2.  The applicant states, in effect, he was not a drug abuser and he thinks it is unfair for him to be punished for the rest of his life for a one time mistake.  He claims everyone who sees his DD Form 214 (Certificate of Release or Discharge from Active Duty) thinks he is a drug user and pusher, which he is not. 

3.  The applicant provides no additional documentary evidence in support of his 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 record shows that he enlisted in the Regular Army and entered active duty on 26 July 1978.  He was trained in and awarded military occupational specialty (MOS) 95B (Military Police).  His DA Form 2-1 (Personnel Qualification Record) shows, in item 18 (Appointments and Reductions), that he was promoted to sergeant (SGT) on 1 August 1983, and that this was the highest rank he attained while serving on active duty.  It also shows that he was reduced to private (PV1)/ E-1 on 29 April 1986.  Item 9 (Awards, Decorations & Campaigns) shows that during his active duty tenure he earned the Army Achievement Medal (AAM), Army Service Ribbon (ASR), Overseas Service Ribbon (OSR), Army Good Conduct Medal (AGCM), Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Pistol Bar.  His record documents no acts of valor or service warranting special recognition.  

3.  The applicant's Official Military Personnel File (OMPF) is void of a separation packet containing the facts and circumstance surrounding the applicant's discharge processing.  The OMPF does include an Army Discharge Review Board (ADRB) Case Report and Directive (OSA Form 172) that does outline the applicant's separation processing, in pertinent part, as follows:  

	a.  on 24 January 1986 - unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, Army Regulation 635-200, for misconduct-abuse of illegal drugs;

	b.  on 27 January 1986 - the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board;

	c.  on 27 March 1986 - a board considered the applicant's case, with the applicant and his counsel present, and recommended separation with an UOTHC discharge; 

	d.  on 29 April 1986 – the separation authority approved separation and directed that the applicant receive an UOTHC discharge; and 

	e.  on 6 May 1986 - applicant was discharged.  

4.  The applicant's record also contains a properly constituted DD Form 214 that confirms the applicant was discharged under the provisions of Paragraph 14-12c, Army Regulation 635-200, by reason of misconduct-drug abuse on 6 May 1986.  




5.  On 8 April 1994, after carefully reviewing the applicant's overall record of service and the issues he presented.  The ADRB determined that the applicant’s characterization of service was proper and equitable and voted not to upgrade the characterization of service.  The ADRB did change the narrative reason for separation on the applicant's DD Form 214 to eliminate the drug abuse entry by simply showing "misconduct," which is in accordance with the current regulatory standard.  

6.  On 14 June 1994, the applicant was issued a DD Form 215 (Correction to the DD Form 214), changing the narrative reason for separation by deleting the drug abuse portion of the entry in item 28 and entering only "misconduct."  

7.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), dated 6 June 2005, provides the current policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  

8.  Paragraph 14-3 of the same regulation contains guidance on characterization of service for members separated under chapter 14.  It states, in pertinent part, that an UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge, under honorable conditions if such is merited by the Soldier's overall record.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An honorable discharge may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is properly delegated.  

9.  Paragraph 14-12c of the enlisted separations regulation provides for the separation of members for misconduct based on the commission of a serious offense which includes the abuse of illegal drugs.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UOTHC discharge should be upgraded and that the reason for discharge should be changed to a reason that is more favorable because he should not pay for one mistake for the rest of his life was carefully considered.  However, there is insufficient evidence to support this claim.  


2.  Although the applicant's record is void of a separation packet containing the facts and circumstances surrounding his discharge processing, it does contain an OSA Form 172, which outlines that processing and confirms his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It further shows that the separation authority directed that the applicant receive an UOTHC discharge, which was appropriate based on the regulatory guidance.  Further, the applicant's record of military service was not sufficiently meritorious for the separation authority to support an honorable discharge or a general discharge at the time of his discharge, nor does it support an upgrade at this time.  

3.  By using illegal drugs while serving as a noncommissioned officer (NCO) and military police officer, the applicant knowingly risked his military career and abused the trust and confidence placed in him as both an NCO and a law enforcement officer.  Therefore, his discharge accurately reflects his misconduct and absent any evidence of an error or injustice in the separation process, it would not be appropriate to grant the requested relief 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.

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)                                         AR20090003322



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ABCMR Record of Proceedings (cont)                                         AR20090003322



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