BOARD DATE:	  21 July 2009

		DOCKET NUMBER:  AR20090004310 


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 (UOTHC) discharge be upgraded to an honorable discharge.

2.  The applicant did not submit any contentions regarding his request.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army on 22 June 1989.  At the completion of basic training and advanced individual training, he was awarded military occupational specialty 62E (heavy construction equipment).  His highest grade held was specialist four.  He served in Germany during November 1989 to December 1992.

3.  On 13 May 1993, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using cocaine between on or about 10 April 1993 and 13 April 1993.

4.  His service personnel records contain two DA Forms 4187-E (Personnel Action) which show he was absent without leave (AWOL) from 18 May 1993 through 20 May 1993.  There is no record of nonjudicial punishment for this period of AWOL.  

5.  On 9 June 1993, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - abuse of illegal drugs.  He was advised of his rights.

6.  On 9 June 1993, the applicant consulted with legal counsel, voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving characterization of service no less favorable than general under honorable conditions, and did not submit statements in his own behalf.  He consulted with legal counsel again on 21 June 1993 and waived consideration of his case by an administrative separation board.

7.  On 25 June 1993, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - abuse of illegal drugs with issuance of an UOTHC discharge.

8.  On 1 July 1993, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  At the time of his discharge, he had completed 4 years and 7 days of creditable active service with 3 days of lost time.  

9.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.  

10.  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.

11.  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.  

12.  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 evidence of record shows the applicant received an Article 15 for wrongfully using some amount of cocaine and he was AWOL for 3 days.  

2.  A discharge UOTHC was normally appropriate for a Soldier discharged under chapter 14 for misconduct.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable discharge.

3.  After review of the evidence of this case, it is determined that the applicant has not presented sufficient evidence which warrants changing his UOTHC discharge to an honorable or a general discharge.

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)                                         AR20090004310





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ABCMR Record of Proceedings (cont)                                         AR20090004310



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