IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090007973 


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, upgrade of his general, under honorable conditions discharge (GD) to a fully honorable discharge (HD).

2.  The applicant states, in effect, that he fully accepts responsibility for his poor judgment that led to his GD.  He indicates that he has since worked to become a more productive member of society and he has learned from his mistakes.  He further states that an upgrade of his GD will allow him to continue to improve professionally and personally.

3.  The applicant provides no evidentiary documents 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 military record shows he enlisted in the Regular Army (RA) and he entered active duty 1 May 1985.  He was trained in, awarded, and served in military occupational specialty (MOS) 88M (Motor Transport Operator).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in Item 18 (Appointments and Reductions), that he was promoted to the rank of specialist four (SP4) on 1 July 1987, and that this was the highest rank he held while serving on active duty.  It also shows that he was reduced to private first class (PFC) on 12 January 1989.

4.  The applicant's record also shows that during his active duty tenure he earned the Army Good Conduct Medal, Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.

5.  The applicant’s disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions, 12 January 1989 and
14 February 1989, both for the wrongful use of cocaine.

6.  On 17 February 1989, 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 (Personnel Separations – Enlisted Personnel), based on his wrongful use of cocaine on two separate occasions.

7.  On 21 February 1989, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects.  The applicant completed his election of rights waiving representation by counsel and electing not to make a statement in his own behalf.

8.  On 24 February 1989, the separation authority, upon the recommendation of the applicant’s chain of command, directed that the applicant be separated under the provisions of paragraph 14-12c, Army Regulation 635-200, and that he receive a GD.  On 2 March 1989, the applicant was discharged accordingly.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he was discharged by reason of “Misconduct-Drug Abuse” after completing 3 years, 10 months, and 2 days of creditable active military service.

10.  The applicant's record is void of any indication that he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An HD or GD may be awarded by the separation authority if warranted by the member's overall record of service; however, an UOTHC discharge is normally considered appropriate for members separated under these provisions.

12.  Paragraph 3-7a of the same regulation provides that an HD 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 that his GD should be upgraded to an HD in order to allow him to improve both professionally and personally because he accepts responsibility for his illegal drug use and he has since worked to become a more productive member of society have been carefully considered.  However, these factors are not sufficiently mitigating to grant the requested relief.

2.  The evidence of record confirms that the applicant accepted NJP on two separate occasions for acts of misconduct based on his abuse of illegal drugs.  By violating the Army's policy not to possess or use illegal drugs, he compromised the trust and confidence placed in him as a Soldier.  He had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, he knowingly risked a military career and clearly diminished the overall quality of his service below that meriting an HD.

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

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)                                         AR20090007973



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ABCMR Record of Proceedings (cont)                                         AR20090007973



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