IN THE CASE OF:	  

		BOARD DATE:	         23 July 2009  

		DOCKET NUMBER:  AR20090004715 


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 fully honorable.

2.  The applicant states that he tested positive for cocaine and it was his first and only Article 15 while serving 7 years in the military.  He goes on to state that the military was downsizing and he had only 6 months left until his expiration of term of service (ETS).  He also states that since his release from the military he has attended and participated in NA [Narcotics Anonymous] and AA [Alcoholics Anonymous] for the past 15 years and attended the Hannibal Drug Treatment Facility (inpatient) for 2 months.  He continues by stating that an upgrade of his discharge would help him to better himself and let him move on with his life.  He also states that he was an excellent Soldier who let one mishap get the best of him.

3.  The applicant provides a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) 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 was born on 26 March 1966 and enlisted in the Regular Army (RA) in St. Louis, Missouri on 12 February 1986 for a period of 3 years and training as a cannon crewman.  He completed his one-station unit training (OSUT) at Fort Sill, Oklahoma and was transferred to Korea on 11 June 1986.  He was advanced to the pay grade of E-4 on 1 June 1987 and departed Korea on 10 June 1987 for assignment to Fort Hood, Texas 

3.  Although the record of nonjudicial punishment is not contained in the available records, his records show that he was reduced from the pay grade of E-4 to the pay grade of E-3 on 19 February 1988.

4.  The applicant was again advanced to the pay grade of E-4 on 1 September 1988 and he got married on 19 September 1988.  On 20 October 1988, he reenlisted for a period of 4 years and assignment to Europe.  He was transferred to Germany on 10 March 1989.

5.  On 24 September 1991, the applicant's commander initiated a bar to reenlistment against the applicant for writing bad checks.  The applicant elected not to submit matters in his own behalf and the appropriate authority approved the bar to reenlistment on 25 September 1991.  The commander reviewed the bar to reenlistment on 14 January 1992 and directed that it remain in place because the applicant had failed to make satisfactory progress in satisfying his indebtedness issues.

6.  He continued to serve in Germany until he departed on 15 April 1992 for assignment to Fort Carson, Colorado.

7.  On 18 December 1992, the applicant tested positive for cocaine and although the record of NJP is not contained in the available records, his records show that he was reduced to the pay grade of E-1 on 4 March 1993.

8.  On 23 March 1993, the applicant's commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense.  He cited the applicant's positive urinalysis as the basis for his recommendation.

9.  On 24 March 1993, after consulting with counsel, the applicant submitted a request for a conditional waiver in which he agreed to waive his rights in return for a characterization of not less than a general, under honorable conditions discharge.

10.  The appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.

11.  Accordingly, he was discharged under honorable conditions on 2 April 1993, under the provisions of Army Regulation 635-200, paragraph 14-12c(2), due to misconduct - abuse of illegal drugs.  He had served 7 years, 1 month, and 21 days of total active service.  

12.  There is no evidence to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations.

13.  At the time of his application to the Board, the applicant was incarcerated at the United States Penitentiary in Marion, Illinois.

14.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question.

3.  The applicant's contentions have been noted; however, they are not fully supported by the evidence of record and are not sufficiently mitigating to warrant the relief he is requesting.  His service simply does not rise to the level of a fully honorable discharge.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090004715



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ABCMR Record of Proceedings (cont)                                         AR20090004715



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