IN THE CASE OF:	  

		BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090008549 


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 his under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states that his discharge was unjust because he was not given sufficient time to seek help for his drug addiction. 

3.  The applicant provides a copy of the approval authority's separation memorandum, dated 29 July 2005, and a copy of his battalion commander's recommendation memorandum, dated 2 March 2005, in support of his request.

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 for a period of 6 years on 21 November 2001.  He completed the training requirements and he was awarded military occupational specialty 25Q (Multichannel Transmission Systems Operator/Maintainer).  The highest rank/grade he attained during his military service was specialist/E-4.  

3.  The applicant's records further show he served in Kuwait/Iraq from 3 March 2003 to 29 May 2003.  His awards and decorations include the Army Commendation Medal, the Good Conduct Medal, the National Defense Service Medal, the Noncommissioned Officer Professional Development Ribbon, the Army Service Ribbon, the Driver and Mechanic Badge, the Basic Marksmanship Qualification Badge, and the Global War on Terrorism Service and Expeditionary Medals.

4.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 21 September 2005 under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) by reason of misconduct-abuse of illegal drugs with a character of service of under other than honorable conditions.  This form further shows he completed 3 years, 9 months, and 7 days of creditable active service and he had 24 days of lost time.

5.  On 21 June 2007, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge. 

6.  The applicant submitted the following memoranda:

	a.  a copy of a memorandum, dated 2 March 2005, from the battalion commander, 1st Battalion, 1st Air Defense Artillery, Fort Bliss, TX, to the commander, 31st Air Defense Artillery Brigade, Fort Bliss stating that he reviewed the applicant's separation packet for commission of a serious offense, illegal drug use.  The recommendation was approval with the issuance of a general discharge under honorable conditions; and 

	b.  a copy of a memorandum, dated 29 July 2005, from the commander, Headquarters, U.S. Army Air Defense Artillery Center, Fort Bliss, TX, through the commander 31st Air Defense Artillery Brigade, Fort Bliss stating that he thoroughly reviewed the separation packet and the findings and recommendations of the board which convened on 25 July 2005.  The commander directed the following:  that further rehabilitation requirement be waived and that the applicant would be immediately separated under the provisions of chapter 14 of Army Regulation 635-200 with an under other than honorable conditions discharge.  He further ordered the applicant not be retained in the Individual Ready Reserve and he be assigned a non-waivable reentry code. 

7.  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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is 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.

8.  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 Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 21 September 2005 under the provisions of chapter 14 of Army Regulation 635-200 for committing a serious offense, illegal abuse of drugs with a character of service of under other than honorable conditions. 

3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service.   

4.  The evidence of record shows the applicant’s discharge was appropriate based on his unlawful abuse of illegal drugs.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade of his discharge.  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, there is insufficient evidence to grant the applicant the 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)                                         AR20090008549



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ABCMR Record of Proceedings (cont)                                         AR20090008549



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