BOARD DATE:	  28 July 2009

		DOCKET NUMBER:  AR20090004328 


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, that his general, under honorable conditions discharge be upgraded to an honorable discharge.  He also requests correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show all awards for his service during the Gulf War.

2.  The applicant states, in effect, his discharge states "abuse of a controlled substance" and he was an excellent candidate for rehabilitation.  He also states, in effect, that he was unaware that he could request an upgrade of his discharge. 

3.  The applicant provides no additional documentation in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and provides no additional documentation in support of the applicant's 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 military records show he enlisted in the Regular Army (RA) on 12 October 1990, in pay grade E-1, for 4 years.  He completed basic combat and advanced training and he was awarded military occupational specialty (MOS) 88M (motor transport operator).  He was advanced to pay grade E-3, which is the highest grade he held during his tenure of service.

3.  The applicant was ordered to temporary duty (deployment) in support of Operation Desert Shield for a period of 179 days with a report date of on or about 27 January 1991.  He served in Saudi Arabia from 26 January to 27 April 1991 with the 298th Transportation Company.

4.  On 18 December 1991, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15, the Uniform Code of Military Justice (UCMJ), for being disrespectful in language and deportment towards a noncommissioned officer (NCO) and willfully disobeying a lawful order from an NCO on 22 November 1991.  His punishment included a reduction to pay grade E-2 (suspended, to be automatically remitted if not vacated before 17 March 1992), a forfeiture of $197.00 pay (suspended, to be automatically remitted if not vacated before 17 March 1992), and 14 days extra duty.  The applicant did not appeal the punishment.

5.  On 27 February 1992, the suspension of punishment of reduction to pay grade E-2 and forfeiture of $197.00 pay was vacated.  The basis for the vacation of suspension was that on 12 February 1992, he was disrespectful in language towards an NCO.

6.  On 5 March 1992, the applicant accepted NJP under the provisions of Article 15, UCMJ, for being disrespectful in language towards an NCO on 12 February 1992.  His punishment included a reduction to pay grade E-1, a forfeiture of $183.00 pay (suspended, to be automatically remitted if not vacated before 4 September 1992), and 14 days of extra duty and restriction.  The applicant did not appeal the punishment.

7.  On 19 March 1992, the applicant received counseling based on a positive urinalysis on 29 February 1992.  He was advised that his continued 

unsatisfactory performance and/or misconduct could result in him being administratively separated from the U.S. Army.

8.  On 23 March 1992, the applicant accepted NJP under the provisions of Article 15, UCMJ, for the wrongful use of marijuana from on or about 22 January 1992 to on or about 29 January 1992.  His punishment included a forfeiture of $183.00 pay per month for two months and 45 days of extra duty and restriction.  The applicant did not appeal the punishment.

9.  On 6 May 1992, the company commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separation), chapter 14, paragraph 14-12c, for abuse of illegal drugs and misconduct.  He advised the applicant that he was recommending his separation because he had received two company grade Article 15s for being disrespectful in language towards an NCO and a field grade Article 15 for wrongfully using marijuana.  He also advised the applicant that he was recommending he receive a general, under honorable conditions discharge.

10.  On 7 May 1992, the applicant, after consulting with counsel, acknowledged receipt of the contemplated action to separate him for abuse of illegal drugs and misconduct under the provisions of Army Regulation 635-200, chapter 14.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge were issued to him. He waived his rights to appear before an administrative separation board and elected not to submit a statement in his own behalf.

11.  On 8 May 1992, the applicant's company commander recommended he be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general, under honorable conditions discharge.

12.  On 14 May 1992, the applicant's battalion commander recommended approval of the applicant's separation with a general, under honorable conditions discharge.

13.  On 27 May 1992, the appropriate separation authority approved the applicant's discharge and directed the issuance of a General Discharge Certificate.  

14.  On 24 July 1992, the applicant was accordingly discharged from active duty, in pay grade E-1, under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct and abuse of illegal drugs, with a characterization of service of general, under honorable conditions.  He was credited with 1 year, 9 months, and 13 days of net active service.
15.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the National Defense Service Medal, Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His DD Form 214 does not contain any awards related to the Gulf War.

16.  The applicant was issued a DD Form 215, dated 17 August 1993, adding his service time in Southwest Asia from 26 January 1991 to 27 April 1991.  No awards for this service were added at that time.

17.  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.

18.  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 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.  

19.  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.

20.  Army Regulation 635-200, paragraph 3-7a, further provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.


21.  Army Regulation 600-8-22 (Military Awards) provides that service in the Persian Gulf War is to be recognized by award of the Southwest Asia Service Medal (SWASM) to Army members who participated in Operations Desert Shield/Desert Storm in the designated area on or after 2 August 1990.  A bronze service star is authorized for the Defense of Saudi Arabia (2 August 1990 through 16 January 1991), Liberation and Defense of Kuwait (17 January through 11 April 1991), and the Southwest Asia Cease-Fire (12 April 1991 through         30 November 1995) campaigns.

22.  Army Regulation 600-8-22 also provides that the Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia (KLM-SA) was approved on 3 January 1992 and is awarded to members of the Armed Forces of the United States who participated in the Persian Gulf War between 17 January 1991 and 28 February 1991.

23.  Army Regulation 600-8-22 further provides that the Kuwait Liberation Medal awarded by the Government of Kuwait (KLM-KU) was approved on 9 November 1995 and is awarded to members of the Armed Forces of the United States who participated in the Persian Gulf War between 2 August 1990 and 31 August 1993.

24.  Department of the Army General Orders Number 24, dated 27 December 1994, show the applicant's unit, the 298th Transportation Company, was awarded the Meritorious Unit Commendation for service during the period 2 September 1990 to 30 April 1991.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered; however, they do not support a change to his general, under honorable conditions discharge.  While serving in the pay grade of E-2, the applicant tested positive for the use of marijuana on 29 February 1992.  He accepted NJP under Article 15, UCMJ in March 1992.  Regulatory guidance provided for the separation of Soldiers in pay grades below E-5 after a first drug offense.  The applicant was advised that in addition to his positive urinalysis, his two company grade Article 15s for being disrespectful towards two NCOs and his field grade Article 15 for wrongfully using marijuana were the basis for the proposed separation action.  

2.  At the time of the applicant's discharge, the issuance of a discharge under other than honorable conditions was normally considered appropriate.   However, it appears that the applicant's overall record was taken into consideration by the separation authority when it directed he receive a general, under honorable 

conditions discharge.  The evidence shows the applicant’s misconduct diminished 
the quality of his overall service below that meriting a fully honorable discharge.  He was properly separated for misconduct, abuse of illegal drugs, and he has submitted neither probative evidence nor a convincing argument in support of his request. 

3.  It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

4.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise. 

5.  The applicant also contends that his DD Form 214 does not reflect any awards for his service during the Gulf War.  

6.  The evidence of record shows the applicant served in support of Operation Desert Shield and was deployed to Southwest Asia from 26 January 1991 to 27 April 1991.  Based on this service he is entitled to award of the SWASM with two bronze service stars, KLM-SA, and the KLM-KU.  Therefore, the applicant is entitled to a correction of his DD Form 214 to reflect these awards.

7.  General Orders entitled the applicant's unit to award of the Meritorious Unit Commendation for its service during the Gulf War.  He was a member of the unit at the time it was awarded the Meritorious Unit Commendation.  Therefore, he is also entitled to a correction to his DD Form 214 to reflect this award.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding 
to Item 13 of the applicant's DD Form 214 the Southwest Asia Service Medal with two bronze service stars, Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia, Kuwait Liberation Medal awarded by the Government of Kuwait, and the Meritorious Unit Commendation and providing him a separation document that includes these awards.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an upgrade of his general, under honorable conditions discharge to an honorable discharge.



      __________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)                                         AR20090004328



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ABCMR Record of Proceedings (cont)                                         AR20090004328



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