BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090009531 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show a more favorable separation authority and narrative reason for separation.  

2.  The applicant states, in effect, he is seeking employment that requires him to obtain a security clearance.  While he accepts that what he did 22 years ago was wrong it does not reflect who he is today.  He claims approval of his request will result in a better life for him and his family.  He also apologizes for the mistakes he made. 

3.  The applicant provides no additional documentary evidence 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 record shows he enlisted in the Regular Army and entered active duty on 13 September 1983.  He was trained in and awarded military occupational specialty (MOS) 76C (Equipment Records and Parts Specialist).  His record confirms the highest rank he held while serving on active duty was sergeant (SGT).  His record documents no acts of valor or significant achievement.

3.  The applicant's record shows that during his tenure on active duty he earned the Army Service Ribbon, Overseas Service Ribbon (2nd Award), Army Achievement Medal with 1st Oak Leaf Cluster, Army Good Conduct Medal, Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar, Expert Marksmanship Qualification Badge with Hand Grenade Bar, and Army Superior Unit Award.  

4.  The applicant's record reflects a disciplinary history that includes acceptance of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana on 4 September 1987.  His punishment for this offense was a reduction to specialist (SPC)/E-4, a forfeiture of $454.00, and 30 days of extra duty and restriction.

5.  On 7 March 1989, the unit commander prepared a Bar to Reenlistment Certificate on the applicant.  The reason cited for the action was the applicant's positive urinalysis.  On 10 April 1989, the appropriate authority approved the bar to reenlistment.  The applicant acknowledged receipt of this action and elected neither to appeal the action nor to submit a statement in his own behalf.  

6.  On 5 May 1989, the unit commander notified the applicant that he intended to initiate separation actions against him under the provisions of chapter 14-12c, 
Army Regulation 635-200, by reason of misconduct.  The unit commander cited the applicant's, 9 February 1989 positive urinalysis for the use of cocaine as the reason for taking the action.  

7.  On 9 May 1989, the applicant accepted NJP for the wrongful use of cocaine, a schedule II controlled substance.  His punishment for this offense was a reduction to private (PVT)/E-1, a forfeiture of $349.00 pay for 2 months, and 
30 days of extra duty.



8.  On 9 May 1989, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to him.  Subsequent to this counseling, the applicant waived his right to have his case considered by a board of officers, his right to a personal appearance before a board of officers, and his right to consulting counsel.  

9.  On 9 May 1989, the separation authority approved the applicant’s separation, and directed that he receive a GD.  The DD Form 214 the applicant was issued upon his discharge on 7 June 1989 shows he was separated under the provisions of Paragraph 14-12c, Army Regulation 635-200, by reason of misconduct –drug abuse, and erroneously issued an honorable discharge.  It further shows he completed a total of 5 years, 8 months, and 
25 days of creditable active military service.

10.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), dated 6 June 2005, provides the current policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  The regulation states, in pertinent part, that a discharge UOTHC is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization would clearly be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless the authority is properly delegated. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the separation authority and narrative reason for his separation should be changed were carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The evidence of record shows the applicant accepted NJP on two occasions for the wrongful use of marijuana and the wrongful use of cocaine.  His 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.  As a result, the authority and reason for discharge documented on his DD Form 214 accurately reflects the reason for separation.  
3.  Absent any evidence of error or injustice related to his separation processing, there is an insufficient evidentiary basis to support granting the requested relief. 

4.  The evidence of record confirms the approval authority directed that the applicant be issued a GD although an administrative error was made and the applicant was issued an HD.  It is the policy of the board not to correct an administrative error if the correction would result in a less favorable action for the applicant.

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 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.




      _______ _   __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)                                         AR20090009531



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009531



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1