IN THE CASE OF:	  

		BOARD DATE:	       10 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090006845 


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 (GD) under honorable conditions be upgraded to a fully honorable discharge (HD).

2.  The applicant states, in effect, that his discharge should be upgraded based on the passage of time so that he may proceed on with his life.

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 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 and entered active duty on 31 December 1987.  It also shows he trained in and was awarded military occupational specialty 27E (Tow/Dragon Repairer) and that the highest rank he attained while serving on active duty was sergeant/E-5.

3.  The applicant's record shows that during his tenure on active duty he earned the Army Service Ribbon, Army Achievement Medal, Noncommissioned Officer Professional Development Ribbon (2nd Award), National Defense Service Medal, Army Good Conduct Medal, Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar, Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar, and Overseas Service Ribbon.

4.  On 25 September 1991, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for on or about 16 August 1991 for wrongfully using cocaine.  His punishment for this offense was a forfeiture of $266.00 pay, 14 days of restriction (suspended, to be automatically remitted if not vacated before 24 March 1992), and 14 days of extra duty.

5.  On 16 October 1991, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using cocaine on or about 29 September 1991.  His punishment for this offense was a reduction to specialist (SPC)/E-4.

6.  On 16 December 1991, the unit commander notified the applicant that he was initiating action to separate him under the provisions of paragraph 14-12c, 
Army Regulation 635-200, by reason of commission of a serious offense.  The commander cited the reason for the proposed action was the applicant’s wrongful use of cocaine. 

7.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, of the rights available to him, and of the effect of a waiver of his rights.  Subsequent to this counseling, the applicant requested consideration of his case by an administrative separation board and elected to submit a statement in his own behalf.  

8.  The applicant indicated in his statement that he knew what he did was wrong and that he was paying for it more than anyone knew.  He also stated he had served as a platoon sergeant, given the military 3 years and 10 months of outstanding service, in which he earned two awards of the Army Achievement Medal, Army Good Conduct Medal and numerous certificates.  He further stated that he did not know what kind of reasonable job he could get with a GD. Therefore, he requested that he be separated by reason of expiration of term of service versus misconduct with a GD.
9.  The separation authority approved the applicant’s separation action and directed that he receive a GD.  On 30 December 1991, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was separated under the provisions of paragraph 14-12c, Army Regulation 635-200 (Personnel Separations – Enlisted Separations), by reason of misconduct – drug abuse.  

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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, convictions by civil authorities, desertion or absence 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.  Paragraph 14-12c pertains to a general commission of a serious offense.  Paragraph 14-12c(2) pertains specifically to a commission of a serious offense that is drug-related.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

12.  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 contention that his GD should be upgraded to an HD based on the passage of time was carefully considered.  However, this factor is not sufficiently mitigating to warrant an upgrade of his discharge. 

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Although the authority and reason for the applicant's discharge authorized the imposition of an under other than honorable conditions discharge, the separation authority granted the applicant a GD based on his overall record of service.  However, the applicant’s acceptance of NJP for illegal drug use clearly diminished the overall quality of his service below that meriting an HD at the time of separation, nor does it support an upgrade at this late date.

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 the aforementioned 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.



      _______ _   ___XXX____   ___
               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)                                         AR20090006845



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ABCMR Record of Proceedings (cont)                                         AR20090006845



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