IN THE CASE OF:	  

		BOARD DATE:	         23 July 2009  

		DOCKET NUMBER:  AR20090004240 


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 general discharge be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that he has accepted responsibility for his actions.  He made some dumb decisions at that time, but 20 years later he would like this blemish removed from his record.  He strives to help others who deal with the problem and he has been clean for 18 years and preaching for 16 years. He also states that he is sorry and embarrassed, but most of all, he is deeply sorry.  Nineteen years ago he made some unwise decisions that caused him to be terminated from the Army early.  For the past 18 years he has thought about this every September 22nd.  He has made several changes in his life to get back on the right track.  He is an ordained minister, he substitutes at the local high school, and he now has a business degree from Northwestern Technical College. He has a lovely wife and an awesome son.  Words cannot express how truly sorry he is for the anxiety, frustration, and inconvenience that he caused.  He knows he failed to deliver on the promise of complying with the rules in the performance of his duties.  His country deserved better.

3.  In support of his application, the applicant provides seven character reference letters. 

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 he enlisted in the Army Delayed Enlistment Program on 28 January 1987.  He enlisted in the Regular Army, in pay grade E-3, on 26 February 1987, for 3 years.  He completed basic training and advanced individual training and was awarded military occupational specialty 13B, cannon crewmember.  

3.  On 22 January 1988, the applicant accepted non-judicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), for the wrongful use of cocaine between 16 November and 15 December 1987, which was detected by biochemical testing of a urine sample submitted to military authorities on 15 December 1987.  His punishment included a reduction to pay grade E-2, a forfeiture of $326.00 pay per month for 2 months, and 45 days extra duty.  The applicant did not appeal the punishment.

4.  The applicant was reduced to pay grade E-2 on 22 January 1988.  He was again advanced to pay grade E-3 on 1 September 1988 and was promoted to pay grade E-4 on 17 March 1989.  

5.  On 8 June 1989, the applicant accepted non-judicial punishment under the provisions of Article 15, of the UCMJ, for the wrongful use of cocaine between 19 March and 20 April 1989, this was detected by biochemical testing of a urine sample submitted to military authorities on 20 April 1989.  His punishment included a reduction to pay grade E-3, a forfeiture of $300.00 pay per month for 
2 months, and 15 days of extra duty.  The applicant did not appeal the punishment.

6.  A Report of Mental Status Evaluation, dated 21 July 1989, shows 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 clear, his thought content was normal and his memory was good.  The evaluating psychiatrist, an Army Medical Corps officer, found the applicant to be mentally responsible and considered him to have the mental capacity to understand and participate in separation proceedings.  He was psychiatrically cleared for any administrative action deemed appropriate.

7.  On 5 September 1989, the company commander notified the applicant of the proposed separation action to separate him with a general discharge.  The applicant was advised that he was being recommended for separation because he had received two field grade Article 15s for the wrongful use of cocaine and he had also been counseled for drug abuse and uniform violations.

8.  On 5 September 1989, the applicant, after consulting with counsel, acknowledged receipt of the proposed separation action for commission of a serious offense under the provisions of Army Regulation 635-200, Chapter 14.  The applicant also acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He waived his rights to appear before a board of officers and elected not to submit a statement in his own behalf.

9.  On 5 September 1989, the applicant's company commander initiated separation actions against the applicant under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for commission of a serious offense.  

10.  On 7 September 1989, the applicant's battalion commander recommended that the applicant be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general discharge.

11.  On 11 September 1989, the appropriate separation authority approved the discharge action and directed the issuance of a General Discharge Certificate.  

12.  On 22 September 1989, the applicant was discharged from active duty, in pay grade E-3, under the provisions of Army Regulation 635-200, paragraph 
14-12c, for misconduct-abuse of illegal drugs.  He was credited with completing
2 years, 6 months, and 27 days of net active service.

13.  The applicant submits seven character reference letters attesting to his post-service duties as a minister, his dedication as an employee, and of the friendship and good character he has continuously demonstrated over several years.  

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

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Separation), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes 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.  

16.  Paragraph 14-12c(2) of this regulation also provided for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs.  It provided that individuals identified as first time drug abusers, grades E-5 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

17.  Army Regulation 635-200, paragraph 3-7a, further provided 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's contentions have been considered; however, they do not support changing his general discharge.  The applicant tested positive for the use of cocaine twice.  He accepted punishment under Article 15 of the UCMJ in January 1988 and in June 1989 for the offenses that led to his discharge.  The applicant’s misconduct diminished the quality of his service below that meriting a fully honorable discharge and he has submitted neither probative evidence nor a convincing argument that shows his post service conduct warrants a fully honorable discharge. 

2.  It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

3.  In view of the circumstances in this case, the applicant was appropriately discharged and he has not shown otherwise.  He has not shown error, injustice, or inequity to support the relief he now requests.  
4.  In view of 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)                                         AR20090004240



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ABCMR Record of Proceedings (cont)                                         AR20090004240



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