IN THE CASE OF:	

		BOARD DATE:	 1 December 2009 

		DOCKET NUMBER:  AR20090011446 


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 an upgrade of his general under honorable conditions discharge to an honorable discharge.

2.  The applicant states that he feels the mistake he made over 15 years ago has, in effect, served its purpose.  He has since become a successful member of his community and has given back to veterans with disabilities.  He has raised three children who are all now college graduates and productive citizens.

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 records show he enlisted in the Regular Army for a period of 4 years and 17 weeks on 3 October 1990.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was specialist/E-4.

3.  The applicant's records also show he was awarded the Army Service Ribbon, the National Defense Service Medal, the Parachutist Badge, and the Air Assault Badge.

4.  On 11 May 1993, the applicant participated in a unit urinalysis and his urine sample tested positive for cocaine.

5.  On 8 June 1993, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for knowingly and wrongfully using some amount of cocaine on or before 11 May 1993.  His punishment consisted of a reduction to private/E-2, a forfeiture of $300.00 pay per month for 2 months (suspended until 6 October 1993), 45 days of restriction, and 45 days of extra duty.

6.  The applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations) for misconduct – commission of a serious offense (abuse of illegal drugs).

7.  On 12 August 1993, the applicant acknowledged receipt of notification of the commander's intent to separate him and he consulted with legal counsel on 16 August 1993.  He 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 further elected to submit a statement on his own behalf.  In his statement, he indicated that he was sorry for the incident and that he took full responsibility for his actions.  He further appealed to the separation authority for a second chance or, in the alternate, an honorable discharge.

8.  The applicant further indicated that he understood that he could expect to encounter substantial prejudice in civilian life if a general under honorable conditions discharge 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.

9.  On 18 August 1993, 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's conduct and performance were unsatisfactory and that the reason for the proposed action was the applicant's misconduct in the form of drug abuse.

10.  In August 1993, the separation authority approved the applicant's discharge under the provisions of paragraph 14-12(c) of Army Regulation 635-200 by reason of misconduct – commission of a serious offense.  He directed the applicant be issued a General Discharge Certificate and his service be characterized as under honorable conditions.  Accordingly, the applicant was discharged on 26 August 1993.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged on 26 August 1993 with a character of service of under honorable conditions by reason of abuse of illegal drugs.  This form further confirms that the applicant completed 2 years, 10 months, and 26 days of creditable active military service.

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

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, and desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribed the conditions that subjected Soldiers to discharge for misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contention that his discharge should be upgraded because he has become a productive citizen and raised successful children subsequent to his discharge was carefully considered; however, there is insufficient evidence to support an upgrade of his discharge.

2.  The evidence of record shows that the applicant committed a serious offense by unlawfully abusing illegal drugs as evidenced by him testing positive for cocaine during a unit urinalysis and accepting NJP under the provisions of Article 15 of the UCMJ for this serious offense.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's discharge was appropriate because the quality of his service was not consistent with the 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.  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)                                         AR20090011446



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ABCMR Record of Proceedings (cont)                                         AR20090011446



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