IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090011149 


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 under other than honorable conditions discharge be upgraded to a general discharge, under honorable conditions.

2.  The applicant states, in effect, that he served honorably for 5 years and 8 months, completed two hardship tours in Korea, and received multiple achievement and service awards.  He adds that he even extended his enlistment in the Army by 12 months due to a shortage in his military occupational specialty (MOS).  He also states that he tested positive on a unit urinalysis and was discharged due to experimenting with recreational drugs.  Due to his discharge he cannot get health care from the Department of Veterans Affairs (DVA) and he feels it is unfair. 

3.  The applicant did not provide any additional documentary evidence in support of his request.  

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 (RA) for a period of 3 years on 7 April 1981.  He completed basic combat and advanced individual training and he was awarded MOS 75B (Personnel Administration Specialist).  His records also show he executed a 12-month extension in the RA on 21 January 1984 and a 4-year reenlistment on 15 January 1985.  The highest rank/grade he attained during his military service was sergeant (SGT)/E-5.

3.  The applicant’s record also shows he served in Korea from on or about 11 August 1981 to 27 August 1982 and from on or about 18 April 1984 to 3 April 1985.  His records further show he was awarded the Overseas Service Ribbon, Army Service Ribbon, Army Achievement Medal (1st Oak Leaf Cluster), Army Good Conduct Medal, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant’s records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 6 August 1985, for wrongfully using some amount of marijuana between on or about 12 May and 12 June 1985.  His punishment consisted of a reduction to private first class (PFC)/E-3 (suspended for 30 days), a forfeiture of $200.00 pay per month for 2 months, 30 days of extra duty, and 15 days of restriction; 

	b.  on 30 January 1986, for assaulting a sergeant by pushing him with his hands on or about 27 December 1985.  His punishment consisted of a reduction to specialist four (SP4)/E-4 (suspended for 45 days) and 14 days of extra duty; and

	c.  on 17 April 1986, for failing to go at the time prescribed to his appointed place of duty on or about 11 April 1986.  His punishment consisted of 7 days of extra duty and a forfeiture of $100.00 pay for 1 month. 

5.  On 18 March 1986, the applicant participated in a urinalysis and his urine sample tested positive for cocaine. 


6.  On 29 May 1986, the applicant accepted NJP under the provisions of the UCMJ for wrongfully using cocaine between 4 March and 18 March 1986.  His punishment consisted of a reduction to SP4/E-4, 30 days of extra duty, and a forfeiture of $350.00 pay per month for 2 months (suspended for 6 months).

7.  On 25 July 1986, the applicant’s immediate commander notified the applicant of his intention to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for misconduct-commission of a serious offense. 

8.  On 25 July 1986, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a separation board and a personal appearance before a separation board, and he submitted a statement in his own behalf. 

9.  The applicant further indicated that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge, under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

10.  On 25 July 1986, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct.  The immediate commander remarked that the applicant had demonstrated that he was unqualified for further service.

11.  On 25 July 1986, the applicant’s intermediate commander reviewed the separation recommendation and recommended approval.  He further remarked that the applicant did not deny his use of drugs and that his flagrant violations of established regulations could not be tolerated.

12.  On 28 July 1986, the applicant’s senior commander also recommended approval of the applicant’s discharge.  He remarked that it was doubtful that the applicant would overcome his drug problems and become productive.  His discharge was in the best interest of the Army.

13.  On 25 August 1986, the separation authority ordered a board of officers be convened to determine whether the applicant should be separated for misconduct.
14.  On 5 November 1986, the applicant again consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He subsequently waived consideration of his case by a separation board and a personal appearance before a separation board.

15.  On 20 November 1986, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12(c) by reason of misconduct-commission of a serious offense.  He directed the applicant's service be characterized as under other than honorable conditions and that he be reduced to the lowest enlisted grade.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged on 2 December 1986 with a character of service of under other than honorable conditions.  This form further confirms that the applicant completed 5 years, 7 months, and 26 days of creditable active military service.

16.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s
15-year statute of limitations.

17.  Army Regulation 635-200, in effect at the time, 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 included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

18.  Army Regulation 635-200, paragraph 3-7b, provides 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’s contention that his discharge should be upgraded because he completed two periods of foreign service in Korea and that he received multiple awards and decorations was carefully considered.  However, there is insufficient evidence to support an upgrade of his under other than honorable conditions discharge.

2.  The evidence of record shows the applicant committed a serious offense by unlawfully abusing illegal drugs as evidenced by his positive urinalysis for cocaine.  Additionally, his record of service shows he accepted NJP under the provisions of the UCMJ for previously using marijuana.  Accordingly, his chain of command initiated separation action against him.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge.

4.  Records are not corrected solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to 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)                                         AR20090011149



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ABCMR Record of Proceedings (cont)                                         AR20090011149



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