IN THE CASE OF:	  

		BOARD DATE:	    8 December 2009

		DOCKET NUMBER:  AR20090009752 


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 under honorable conditions be upgraded to an honorable discharge. 

2.  The applicant states he has changed his life with God's help and he needs a better discharge.

3.  The applicant provides no additional 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 military personnel records show he enlisted in the Regular Army on 26 May 1987 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 91A (Medical Specialist).  He immediately reenlisted on 15 December 1989 for a period of 3 years.  He had completed 2 years, 5 months, and 19 days of active service that was characterized as honorable.

3.  On 16 March 1990, the applicant received a letter of reprimand from his commander for providing a urinalysis specimen during a unit urinalysis sweep that came up positive for cocaine.

4.  On 3 July 1990, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being in an off limits establishment, wrongful use of cocaine and marijuana between 1 and 15 April 1990, and wrongful soliciting of a police officer for the sale and delivery of cocaine.

5.  On 28 June 1990, the applicant received a mental status evaluation.  According to the DA Form 3822-R (Report of Mental Status Evaluation) the examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings.

6.  On 2 August 1990, the applicant received another mental status evaluation.  According to the DA Form 3822-R the examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings.

7.  On 24 September 1990, the applicant's commander notified him that action was being initiated to separate him under the provisions of paragraph 14-12c, chapter 14 of Army Regulation 635-200 (Personnel Separations) for misconduct/commission of a serious offense/positive urinalysis.  The commander stated the reason for his proposed action was that he had wrongfully used cocaine.  The commander advised the applicant of his right to consult with counsel; his right to obtain copies of documents that would be sent to the separation authority supporting the proposed separation action; his right to request a hearing before an administrative separation board; his right to submit statements in his own behalf; to be represented by counsel; to waive any of these rights; and to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge.  The commander also advised the applicant he was recommending that he receive a general discharge.  The applicant acknowledged receipt of this notification on 24 September 1990.

8.  On 26 September 1990, the applicant submitted a statement acknowledging he had been advised by counsel of the basis for the contemplated separation action for abuse of illegal drugs.  The applicant did not submit statements in his own behalf.  He acknowledged that because he had less than 6 years of total active and reserve military service at the time of separation he is not entitled to have his case heard by an administrative separation board unless he is being considered for a discharge under other than honorable conditions.  The applicant acknowledged that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

9.  The applicant's commander recommended that he be separated from the 
U.S. Army prior to expiration of his term of service under the provisions of Army Regulation, chapter 14-12c.

10.  The applicant's intermediate commander recommended approval of the discharge recommendation with the issuance of a General Discharge Certificate.

11.  On 19 October 1990, the appropriate authority approved the recommendation for the applicant’s discharge under the provisions of paragraph 14-12c, Army Regulation 635-200 with the issuance of a General Discharge Certificate.  

12.  On 8 November 1990, the applicant was discharged under the provisions of chapter 14, paragraph 14-12c of Army Regulation 635-200 by reason of misconduct - drug abuse.  He had completed 11 months and 4 days of active service on this enlistment that was characterized as under honorable conditions.  

13.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 14 February 2003, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under honorable conditions.

14.  Chapter 14, paragraph 14-12c of Army Regulation 635-200, in effect at the time, dealt with separation for various types of misconduct, which included drug abuse, and provided 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.

15.  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 available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

2.  The applicant's continued use of cocaine and the soliciting of a police officer for sale and delivery of cocaine clearly show he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or significant achievement.  Therefore, the applicant's misconduct does not qualify him for an honorable discharge.

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits.  

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 that 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)                                         AR20090009752



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ABCMR Record of Proceedings (cont)                                         AR20090009752



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