IN THE CASE OF:	  .

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090009109 


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 that his general discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his discharge should be upgraded due to the length of time that he has been out of the military.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a Standard Form 180 (Request Pertaining to Military Records) 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 enlisted in the Regular Army on 12 September 1986 for a period of 4 years.  He successfully completed basic training and advanced individual training in military occupational specialty 75D (personnel records specialist).  He attained the rank of private first class/E-3 on 1 August 1987.

3.  On 23 October 1987, nonjudicial punishment was imposed against the applicant for using cocaine.  His punishment consisted of a reduction to private/E-1, a forfeiture of pay, extra duty, and restriction.

4.  On 5 January 1988, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, paragraph 14-12c, for misconduct (abuse of illegal drugs).  The unit commander cited the applicant's positive urinalysis tests for cocaine on 22 September 1987 and 28 September 1987.

5.  On 5 January 1988, the applicant consulted with counsel, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued, and elected to submit a statement on his own behalf.  In summary, he requested a general discharge because he thought he was a great trooper during his service in basic training, advanced individual training, and in the 82nd Airborne Division.  He admitted that he made a terrible mistake when he involved himself with illegal drugs, that he was sorry, that a general discharge would give him a better opportunity for employment, and that he would have a better chance on upgrading a general discharge to an honorable discharge in the future.

6.  On 22 January 1988, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

7.  Accordingly, the applicant was discharged on 29 January 1988 with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (drug abuse).  He had served a total of 1 year, 4 months, and 18 days of creditable active service.

8.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

9.  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 (military or civilian offense), and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is 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.

10.  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 record of service included nonjudicial punishment for using cocaine.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  The Army does not have nor has it ever had a policy that provides for the upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the ADRB or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.  As a result, there is an insufficient evidentiary basis to support 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)                                         AR20090009109



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009109



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1