BOARD DATE:	  16 July 2009

		DOCKET NUMBER:  AR20090004077 


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 that his under other than honorable conditions discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states, in effect, that he believes he was unjustly separated with an under other than honorable conditions discharge and that he believes his discharge should be upgraded to a general discharge based on the two previous honorable discharges that he received.  He contends that he was discharged in absentia but he was not absent without leave (AWOL) beyond 30 days and that no nonjudicial punishment or court-martial action was taken against him. 

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 Regular Army on 14 August 1979 and upon completion of initial training he was awarded military occupational specialty 71L (Administrative Specialist).  On 20 August 1982, he reenlisted for 3 years, and on 3 July 1985 he reenlisted for an additional 3 years.  He was promoted to staff sergeant, E-6, effective 4 August 1986.

3.  On 7 January 1987, the applicant received a letter of reprimand for leaving his place of duty on 28 December 1986 and failing to report for duty from 
29 December 1986 to 30 December 1986.

4.  On 27 January 1987, the applicant accepted non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for failure to report to his place of duty on 9 January 1987.  The punishment consisted of a forfeiture of $406.00 per month for 2 months.

5.  A DA Form 4187 (Personnel Action), dated 8 April 1987, shows the applicant departed AWOL on 6 April 1987 and returned to duty on 7 April 1987.

6.  On 9 April 1987, the applicant underwent a mental status evaluation.  The applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or affect was unremarkable, his thinking process was clear, and his thought content was normal.  The evaluating psychiatrist found him to be mentally responsible and to have the mental capacity to understand and participate in administrative proceedings.  

7.  On 12 May 1987, the applicant was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct, commission of a serious offense.  The applicant's unit commander based his recommendation for separation on a random urinalysis on 1 April 1987 for which the applicant tested positive for cocaine and on a series of unauthorized absences by the applicant.  The applicant acknowledged the contemplated action on 12 May 1987.

8.  A DA Form 4187, dated 14 May 1987, shows the applicant failed to report for duty on 14 May 1987.

9.  A DA Form 4187, dated 15 May 1987, shows the applicant voluntarily surrendered to the first sergeant/station noncommissioned officer at the Dallas Military Entrance Processing Station (MEPS) on 15 May 1987.  

10.  A DA Form 4187, dated 18 May 1987, shows the applicant failed to report for a mandatory legal appointment on 15 May 1987 and did not appear for duty on 
18 May 1987.

11.  In a memorandum for record, dated 21 May 1987, the Dallas MEPS Station Noncommissioned Officer in Charge (NCOIC) stated that the applicant was ordered to report to the MEPS by 0400 hours on 13 May 1987 to be transported to his legal appointment.  He failed to report.  The applicant was AWOL until 0810 hours on 15 May 1987, at which time the Station NCOIC arranged for a legal counsel appointment at Fort Hood for the applicant.  The applicant departed at 0900 hours for his appointment at 1300 hours that same day; however, he did not show for his appointment and as of 1700 hours on 21 May was still AWOL.

12.  On 21 May 1987, the applicant's unit commander recommended the applicant be separated from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct with an under other than honorable conditions discharge.  The commander cited as the bases for his recommendation that the applicant had committed a number of serious offenses consisting of being AWOL, failure to report, and abuse of illegal drugs.  

13.  The battalion commander recommended approval of the applicant's separation action, without the benefit of his appearing before a board of officers, based on the applicant's absence from his unit after been formally notified of the separation action initiated against him.  

14.  On 22 May 1987, the Staff Judge Advocate's Office found the separation packet pertaining to the applicant legally sufficient for further processing.  This office further stated that the Soldier failed to respond to the notice provided by his commander within the required 7 days.  Therefore, the Soldier waived his rights.

15.  On 25 May 1987, the appropriate authority approved the separation action and directed the applicant receive an under other than honorable conditions discharge.

16.  On 8 June 1987, the applicant was discharged in absentia under the provisions of Army Regulation 635-200, chapter 14, for misconduct-drug abuse, with an under other than honorable conditions discharge.  

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

18.  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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion, or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that 
rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

19.  Army Regulation 635-200, paragraph 3-7b, provides 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's contention that he was unjustly separated with an under other than honorable conditions discharge and that his discharge should be upgraded based on his previous service was carefully considered and determined to be without merit.  The applicant was a noncommissioned officer with over 7 years time in service.  He should have known the Army's policy on the use of illegal drugs and its consequences.  

2.  The applicant also contends that he returned prior to being gone 30 days.  However, his return took place after a 25-day unauthorized absence and the appropriate authority had already approved the applicant's discharge on 25 May 1987.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The applicant has failed to show that he was improperly discharged due to illegal drug abuse.  

4.  Considering the applicant's numerous instances of misconduct, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge under honorable conditions.

5.  Based on the foregoing, there is no basis for granting the applicant's 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)                                         AR20090004077



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ABCMR Record of Proceedings (cont)                                         AR20090004077



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