IN THE CASE OF:	

		BOARD DATE:	23 June 2009  

		DOCKET NUMBER:  AR20090004403 


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 discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that one serious incident that happened 20 years ago resulted in a blemish on his record that cost him 16 years of service.  He also states, in effect, that while his record is not in error, he hopes his discharge can be upgraded.

3.  The applicant provides a self-authored statement 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 he enlisted in the Regular Army and entered active duty on 27 August 1975.

3.  The applicant’s military record reveals a disciplinary history that includes his acceptance of nonjudicial punishment on 18 June 1991 for wrongfully using cocaine during the period 19 April 1991 to 19 May 1991.  His punishment included a reduction to the rank of sergeant/E-5, forfeiture of $740.00 pay per month for 2 months (1 month suspended), 30 days of restriction, and 30 days of extra duty.

4.  The applicant’s military record reveals a disciplinary history that includes his acceptance of nonjudicial punishment for breaking restriction on or about 2 August 1991.  His punishment included a reduction to the rank of specialist/
E-4, 45 days of restriction, and 45 days of extra duty.

5.  On 8 August 1991, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of paragraph 14-12c(2), Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), by reason of misconduct (abuse of illegal drugs) with a general discharge under honorable conditions.  The reason for the proposed action was the applicant’s wrongful use of cocaine.

6.  On 28 August 1991, the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board and declined to submit statements in his own behalf.

7.  On 26 September 1991, the separation authority approved the applicant’s request for discharge and directed that he receive general discharge under honorable conditions.

8.  On 25 October 1991, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct (abuse of illegal drugs) with a general under honorable conditions discharge.  The DD Form 214 he was issued at the time confirms he held the rank of specialist/
E-4 and had completed a total of 16 years, 1 month, and 29 days of active military service.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14 of this regulation 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, conviction by civil authorities, desertion, or absences 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.  A discharge under other than honorable conditions is normally considered appropriate.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be without merit.

2.  The evidence of record shows that the applicant was discharged with a general discharge under honorable conditions by reason of misconduct (abuse of illegal drugs).  The applicant was a noncommissioned officer with many years of experience.  Not only did he use a controlled substance, cocaine, he compounded his misconduct by breaking the restriction he received as punishment for that misconduct.  Therefore, his service does not warrant an upgrade of his discharge to an honorable 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)                                         AR20090004403



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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