IN THE CASE OF:	  

		BOARD DATE:	    10 December 2009

		DOCKET NUMBER:  AR20090011211 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD), under honorable conditions; and restoration of his eligibility for dental and health benefits.

2.  The applicant states, in effect, that his discharge was inequitable because it was based on a single episode of behavior for which counseling and rehabilitation were promised and not adequately provided.  He states counseling services were sporadic and not nearly aggressive enough to forestall future occurrences.  

3.  The applicant further indicates prejudice was evident in the panel that considered his case; in fact, it was so blatant the presiding officer had to be removed.  Additionally, he states that his health and dental benefits should be restored due to the fact that these related services as prescribed on his DD Form 214 (Certificate of Release or Discharge from Active Duty) were never provided as required.

4.  The applicant provides a DD Form 214, four third-party statements, an Associate of Science Degree, and three certificates of achievement 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 records show he enlisted in the Regular Army and entered active duty on 23 March 1988.  It also shows he was awarded military occupational specialty 74C (Record Telecommunication Center Operator) and the highest rank he attained while serving on active duty was specialist/E-4.

3.  The applicant's record shows that during his tenure on active duty, he earned the Army Service Ribbon, National Defense Service Medal, Army Good Conduct Medal, Southwest Asia Service Medal with 3 bronze service stars, Kuwait Liberation Medal, and Marksman Marksmanship Qualification Badge with M-16 Rifle Bar.  His record documents no acts of valor.  

4.  On 19 September 1991, the unit commander prepared a Bar to Reenlistment Certificate on the applicant and the reasons cited for the action were the applicant's receipt of counseling statements for an unkempt personal appearance, unofficial/unauthorized personal telephone calls, and indebtedness. The applicant acknowledged receipt of this action and elected neither to appeal the action nor to submit a statement in his own behalf.  Subsequently, the appropriate authority approved the bar to reenlistment.

5.  On 31 October 1991, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing and using cocaine, a controlled substance, on or about 7 October 1991.  His punishment for this offense was a reduction to the rank of private/E-1, a forfeiture of $376.00 pay for 2 months, and 45 days of extra duty.  

6.  On 8 November 1991, the unit commander notified the applicant that he intended to initiate separation action on him under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations – Enlisted Separations), by reason of misconduct.  The unit commander cited the applicant's positive military drug test for cocaine as the basis for taking the action.

7.  On 18 November 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, of the rights available to him, and of the effect of a waiver of his rights.  Subsequent to this counseling, the applicant requested consideration of his case by an administrative separation board and elected to submit a statement in his own behalf.  

8.  On 5 January 1992, the Brigade Commander directed that the applicant's case be referred to an Administrative Separation Board (ASB).  

9.  On 27 March 1992, an ASB convened to consider the applicant's case.  During the proceedings, the Legal Advisor conducted a voir dire with all the board members; this included a lieutenant colonel (LTC), a captain (CPT), and a sergeant major (SGM).  During this process, based on responses to his questions, the Legal Advisor upheld a challenge of the SGM, who was removed; however, he did not uphold the challenge to the LTC.  Later based on the replacement officer, the Staff Judge Advocate recommended the LTC be replaced to avoid any appearance of impropriety because both junior officers on the board were in his rating chain and the LTC was replaced for this reason, not for cause. 

10.  The ASB found the applicant had abused an illegal drug and committed a serious offense.  The board of officers recommended that the applicant be discharged from the service due to misconduct –commission of a serious offense and that he receive an UOTHC discharge.

11.  On 30 March 1992, the applicant's attorney requested disapproval of the ASB's recommendation based on the fact that the applicant did not receive a "full and fair hearing."  He stated that the legal advisor was not impartial in that his one and only witness was temporarily unavailable due to the death of his mother. However, a request for continuance until the witness was available was refused.  


12.  On 8 April 1992, an Administrative Law Attorney completed a legal review of the case.  After careful consideration of the issues raised by the applicant and his attorney, the legal advisor determined that the claim was unsubstantiated and recommended that the Installation Commander approve the findings and recommendations of the ASB.  

13.  On 9 April 1992, the separation authority approved the recommendation of the ASB and directed that the applicant receive an UOTHC discharge.  On
14 April 1992, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was separated under the provisions of paragraph 14-12c, Army Regulation 635-200 (Personnel Separations – Enlisted Separations), by reason of misconduct –commission of a serious offense.  

14.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for a change to his discharge within the ADRB's 
15-year statute of limitations. 

15.  Army Regulation 635-200 (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.  Paragraph 14-3 contains guidance on characterization of service for members separated under chapter 14.  It states, in pertinent part, that an UOTHC discharge 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.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An honorable discharge (HD) may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is properly delegated. 

16.  Paragraph 14-12 of this regulation identifies conditions that subject Soldiers for discharge for misconduct.  Paragraph 14-12a provides for misconduct separations for minor misconduct and paragraph 14-12b provides for misconduct separations for a pattern of misconduct.  Paragraph 14-12c provides for the separation of members for misconduct based on the commission of a serious offense.  Sub-paragraph (2) identifies abuse of illegal drugs as serious misconduct and provides for separation for this reason under paragraph 14-12c.  


17.  Paragraph 14-12c(2)b of the same paragraph and regulation further states, in pertinent part, that all Soldiers against whom charges will not be referred to a court-martial authorized to impose a punitive discharge or against whom separation action will not be initiated under the provisions of Chapter 9 of this regulation or Section II of this chapter, will be processed for separation under the provisions of a, b, or c above as applicable.  "processed for separation" means that separation action will be initiated and processed through the chain of command to the separation authority for appropriate action. 

18.  Paragraph 3-7a of the same regulation provides that an HD 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.  

19.  Paragraph 3-7b, provides that a GD 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 HD.  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 UOTHC discharge was inequitable because it was based on a single episode of behavior was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  The ASB was properly conducted and its findings and recommendations were found to be legally sufficient by proper legal authority subsequent to consideration of the applicant's appeal through his attorney.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

3.  The applicant's record documents no acts of valor; however, it does reveal an extensive disciplinary history, which includes a bar to reenlistment based on conduct related matters and indebtedness, and illegal drug use, which is a commission of a serious offense.  As a result, his overall record of service did not support the issuance of an HD or GD by the separation authority.  Therefore, the available evidence does not support an upgrade to a GD or an HD. 


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 or that would support amendment of the original Board decision in this case.

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)                                         AR20090011211



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ABCMR Record of Proceedings (cont)                                         AR20090011211



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