IN THE CASE OF:	  

		BOARD DATE:	  12 November 2009

		DOCKET NUMBER:  AR20090010045 


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

2.  The applicant states, in effect, that he was discharged with the illness of alcoholism and he was not properly treated for that illness. 

3.  The applicant provides no additional documents with 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 (RA) on 9 October 1984 for a period of 3 years and training as a food service specialist.  He completed his 
basic training at Fort Leonard Wood, MO and his advanced individual training at Fort Lee, VA before being transferred to Fort Campbell, KY for duty as a cook.  He was advanced to the pay grade of E-4 on 1 January 1986.

3.  On 7 April 1986, he was transferred to Germany for assignment to the Frankfurt Military Community for duty as a cook.

4.  On 16 March 1987, the applicant was counseled by his unit first sergeant (1SG) and advised that the urine sample he had submitted on 17 February 1987 had tested positive for THC (tetrahydrocannabinol) and that he was being recommended for discharge because this was his second offense.  He was also advised that the Drug Suppression Team (DST) wanted to talk to him and he was advised that if he cooperated with the DST, he (the 1SG) would recommend that he be retained in the Army.

5.  On 5 May 1987, nonjudicial punishment was imposed against the applicant for the wrongful use of THC.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, and restriction.

6.  On 8 May 1987, the applicant's commander notified him that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, due to misconduct - abuse of illegal drugs.  He indicated that the basis for his recommendation was that the applicant had two offenses involving the abuse of illegal drugs and his performance of duty was marginal.  He also advised the applicant that he was recommending that he be issued a General Discharge Certificate.

7.  On 12 May 1987, after consulting with counsel, the applicant waived his rights and elected not to submit matters in his own behalf.

8.  On 14 July 1987, the appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.

9.  Accordingly, on 13 August 1987, he was discharged with a general, under honorable conditions discharge under the provisions of Army Regulation
635-200, paragraph 14-12c, for misconduct - abuse of illegal drugs.  He had served 2 years, 10 months, and 5 days of total active service.

10.  A review of his records failed to reveal any indication that the applicant had a reported problem with alcohol.

11.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question.

3.  The applicant's contentions have been noted and found to lack merit because they are not supported by the evidence of record.  Given the nature of his misconduct and his overall undistinguished record of service, there appears to be no mitigating circumstances in his case that would be sufficiently compelling to justify an upgrade of his discharge.  

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 this 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)                                         AR20090010045



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010045



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1