IN THE CASE OF:	

		BOARD DATE:	20 August 2009    

		DOCKET NUMBER:  AR20090005993 


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, an upgrade of his general, under honorable conditions discharge to fully honorable.

2.  The applicant states that the discharge is inconsistent with the standards of discipline in the Army.  He was provided with no opportunity for rehabilitation or treatment despite having had two honorable discharges and/or reenlistments. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 15 November 1991, 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 records show he enlisted in the Regular Army (RA) for a period of 2 years on 25 November 1981.  He completed basic combat and advanced individual training, and he was awarded military occupational specialty 31K (Combat Signaler).  He also executed three 3-year reenlistments on
15 October 1984, 17 March 1988, and 4 October 1990.  He was promoted through the ranks to sergeant (SGT)/E-5 on 6 March 1987.

3.  The applicant’s records also show he completed two foreign service tours in Germany from 12 May 1982 to 27 October 1983 and from 14 October 1985 to on or about 6 October 1988.  He also served in Panama from 20 December 1989 to
20 January 1990 in support of Operation Just Cause.

4.  The applicant’s records further show he was awarded the Army Service Ribbon, Overseas Service Ribbon (2nd Award), Driver and Mechanic Badge with Driver-W Bar, Noncommissioned Officer Professional Development Ribbon, Army Commendation Medal, Armed Forces Expeditionary Medal, Good Conduct Medal, National Defense Service Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) and Grenade Bar, and the Army Achievement Medal (1st Oak Leaf Cluster).

5.  The applicant's records reveal two instances of being absent without leave (AWOL) from 7-9 January 1983 and from 10-12 January 1983. 

6.  On 27 September 1989, the applicant was apprehended by military police officials at Fort Order, CA, for unlawful entry into government quarters.  

7.  On 15 August 1991, the applicant pleaded not guilty at a Summary Court-Martial to one specification of using cocaine on or about 12 May 1991.  The Court found him guilty and sentenced him to a reduction to specialist (SPC)/E-4, a forfeiture of $880.00 pay, and 60 days of restriction.  The sentence was adjudged and approved on 15 August 1991.

8.  On 21 October 1991, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for misconduct - commission of a serious offense.  Specifically, the immediate commander cited the applicant’s wrongful use of cocaine.

9.  On 21 October 1991, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and he was advised of the basis for the contemplated separation action for misconduct, the type of 
discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by an administrative separation board, waived a personal appearance before an administrative separation board, and elected not to submit a statement on his own behalf.

10.  The applicant further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and state laws.

11.  On 21 October 1991, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct - abuse of illegal drugs, with the issuance of a general, under honorable conditions discharge.  He further requested a waiver of the requirements for rehabilitation and indicated that further rehabilitation would not have been feasible and would have created serious disciplinary problems or a hazard to the mission and the member. 

12.  On 21 October 1991, the applicant’s intermediate commander recommended the applicant be separated from the Army for misconduct, commission of a serious offense with the issuance of a general, under honorable conditions discharge.

13.  On 24 October 1991, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - abuse of illegal drugs, and directed the applicant be furnished a general, under honorable conditions discharge.  Accordingly, the applicant was discharged on 15 November 1991.  The DD Form 214 he was issued confirms he was separated with a general, under honorable conditions discharge.  This form further confirms he completed a total of 9 years,
11 months, and 20 days of creditable military service.

14.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s     15-year statute of limitations.

15.  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.

16.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded to honorable.

2.  The evidence of record shows the applicant had a history of disciplinary problems including two instances of AWOL, one instance of a court-martial for the wrongful use of cocaine, and an arrest by military police.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He was accordingly discharged under the provisions of paragraph 14-12c of Army Regulation 635-200 due to his misconduct.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  Therefore, the underlying reason for the applicant's discharge was his misconduct.  

3.  Contrary to the applicant's statement that his discharge was inconsistent with the standards of discipline in the Army, the evidence of record shows the applicant’s discharge was appropriate because the quality of his service during his last enlistment, combined with his prior misconduct, was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Additionally, during his administrative separation process, the applicant's rehabilitation issue was addressed; however, his chain of command did not deem any rehabilitation efforts a viable option given his history of misconduct and/or the nature of the misconduct (drugs). 

4.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20090005993



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ABCMR Record of Proceedings (cont)                                         AR20090005993



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