IN THE CASE OF:
BOARD DATE: 30 July 2009
DOCKET NUMBER: AR20090006060
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 two applications, that his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.
2. The applicant states, in effect, that after one year his discharge is required to be a general discharge. He adds that he was a staff sergeant promotable when he picked up a Soldier who had drugs in his possession. He claims that he was not using drugs. He also states he is trying to file for pension benefits because right now his only income is from Social Security Income.
3. The applicant provides 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 applicants 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 applicants 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 that he was a U.S. Army Reserve (USAR) Staff Sergeant (SSG)/E-6 who was ordered to active duty in support of Operation Desert Shield/Storm on 8 January 1991.
3. On 22 August 1991, a board of officers was convened to determine whether the applicant should be separated due to misconduct, abuse of illegal drugs. The board of officers considered a positive urinalysis for cocaine which was taken from the applicant on or about 4 March 1991. The board of officers found that the applicant did commit a serious offense in the wrongful use of a controlled substance (cocaine) and recommended he be discharged with an UOTHC discharge.
4. The findings of the board of officers was approved by the appropriate authority. Accordingly, on 27 September 1991, the applicant was discharged with an UOTHC discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c for misconduct, abuse of illegal drugs.
5. Army Regulation 635-200, in effect at all times pertinent to this application, sets forth the criteria for separating enlisted service members from active duty. Chapter 14 of that regulation contains policy and procedures for separating personnel for misconduct. Paragraph 14-12d specifically deals with the abuse of illegal drugs, and provides, in material part, that service members in grades E-5 through E-9, against whom charges will not be referred to a court-martial authorized to impose a punitive discharge, or against whom separation action will not be initiated under other criteria, will be processed for separation under chapter 14.
6. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. While the applicant states that he simply picked up a Soldier who had illegal drugs in his possession and he was not using drugs himself, the evidence of record shows the contrary. Records show he tested positive for cocaine, which was the basis for his contemplated discharge action.
2. The applicant was given a board of officers to consider his case, and the board of officers found that he did abuse illegal drugs and recommended that he be discharged. There was no error or injustice found in that process.
3. The characterization of the applicant's service is appropriate in consideration of the seriousness of his misconduct.
4. The Army does not have, nor has it ever had, a policy to automatically upgrade a discharge based solely on the passage of time.
5. Additionally, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.
6. In view of the foregoing, there is no basis for granting the applicant's requested 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) AR20090006060
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ABCMR Record of Proceedings (cont) AR20090006060
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