BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090009286 


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 upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant essentially states that he was caught smoking cocaine while at Fort Ord, CA and he was discharged from the Army, but that he did not go before a court.  He also contends that there were other people involved in the same incident, and believes that some of those people got to stay in the service.

3.  The applicant provides no additional evidence in support of this 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 records show that he enlisted in the Indiana Army National Guard (INARNG) in April 1987.  He was ordered to active duty for training (ADT) on 21 April 1987, he completed initial entry training, and he was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  He was released from ADT on 26 August 1987 and he reverted back to his National Guard unit.  On 7 April 1988, he enlisted in the Regular Army (RA) and he was assigned to Headquarters and Headquarters Company, 3rd Battalion, 17th Infantry Regiment at Fort Ord.

3.  On an unknown date, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine between on or about 1 May 1988 and on or about 1 June 1988.  His punishment consisted of a reduction in rank/grade from private (PV2)/E-2 to private (PV1)/E-1, forfeiture of $335.00 pay per month for 2 months, and extra duty and restriction for 45 days. 

4.  On 14 September 1988, the applicant accepted NJP under Article 15 of the UCMJ for wrongfully using cocaine between on or about 17 July 1988 and on or about 17 August 1988.  His punishment consisted of a forfeiture of $335.00 pay per month for 2 months, and extra duty and restriction for 45 days.

5.  Although many of the documents in the applicant's separation packet are undated, they indicate that the applicant's commander informed him that he was initiating action to discharge him from the U.S. Army under the provisions of paragraph 14-12c(2)b (commission of a serious offense - second time drug offenders), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for wrongfully using cocaine on two occasions.  The applicant's commander also recommended that he receive an under other than honorable conditions characterization of service.  He also advised the applicant of his rights.

6.  On 9 November 1988, the applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated action to separate him under the provisions of paragraph 14-12c, Army Regulation 635-200 and its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He also understood that if he had less than 6 years of total active and reserve military service at the time of separation and he was being considered for separation by reason of misconduct under the provisions of chapter 14 (Separation for Misconduct), Army Regulation 635-200, he was not entitled to have his case heard by an administrative separation board unless he was being considered for a discharge under other than honorable conditions.  He waived consideration of his case by an administrative separation board and did not elect to submit statements in his own behalf.
7.  Additionally, the applicant acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  Further, he understood that, as a result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He also understood that if he received a discharge certificate/characterization of service which was less than honorable, he may make an application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, he realized that an act of consideration by either board did not imply that his discharge would be upgraded. 

8.  On 23 November 1988, the proper separation authority approved the applicant's discharge under the provisions of paragraph 14-12c, Army Regulation 635-200 for misconduct due to abuse of illegal drugs, and directed that he be issued a discharge under other than honorable conditions.  On 7 December 1988, the applicant was discharged accordingly.

9.  There is no indication that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

10.  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. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7b provides, in pertinent part, 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, under honorable conditions discharge.
2.  The applicant's contention that he did not go before a court was noted.  However, the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200 was administrative in nature that did not require action by a court.  Had he actually been tried by a court-martial, based on the offenses committed, he could have faced imprisonment and/or a punitive discharge (i.e., dishonorable or bad conduct).

3.  The applicant's claim that other people were involved in the same incident and that some of those people got to stay in the service was also noted.  However, the applicant provided no evidence to corroborate this claim.

4.  The applicant's military records show that he twice accepted NJP under Article 15 of the UCMJ for wrongfully using cocaine.  By wrongfully using cocaine, the applicant knew or should have known that he was risking his military career, and that he violated the trust and confidence placed in him as a Soldier.  As such, the applicant’s command acted appropriately in initiating action to separate him for misconduct due to his abuse of illegal drugs.  Given the severity of his offenses, the applicant failed to provide evidence which proves that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant his requested relief.

5.  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.

6.  The applicant's record of service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

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)                                         AR20090009286



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ABCMR Record of Proceedings (cont)                                         AR20090009286



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