IN THE CASE OF:	

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090011714 


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 a change of his date of separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show that he completed 3 years of active service.

2.  The applicant states that, 11 days short of the expiration of his term of service (ETS), he was discharged for drug abuse.  He would like his discharge date changed so that he will have 3 years of continuous military service and qualify for employment with the U.S. Federal government.  He says he takes full responsibility for his immature actions of abusing drugs.  He notes that since that time he has been a productive citizen.  He worked as a civilian employee as a cook in dining facilities at the Fort Hood, TX dining facility and as a contract employee at the dining facility at Camp Eco, Iraq.  He is also a church member and he has been engaged in mentoring youths by sharing his mistakes and his good choices.

3.  The applicant provides no documentation in support 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.  On 11 January 1995, the applicant, a junior college graduate, enlisted in the Regular Army (RA) for 3 years.  He was approximately 25 years and 5 months old at the time of his enlistment.

3.  He completed training in military occupational specialty (MOS) 14R (Line of Sight-Forward-Heavy Crew Member) and he was transferred to Korea.  The applicant was advanced to the rank/grade of private (PV2)/E-2 on 12 June 1996 and he completed his tour of duty in Korea in August 1996.

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) in March 1997 for abuse of marijuana in January 1997 and cocaine in February 1997.  His punishment included reduction to the rank/grade of private (PV1)/E-1.

5.  On 1 August 1997, as a result of a unit urinalysis, he tested positive for cocaine.  The applicant was subsequently referred to the Army's Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for evaluation

6.  On 7 October 1997, the applicant received another NJP for abusing marijuana and two instances of abusing cocaine.  His punishment included a forfeiture of $450.00 pay per month for 2 months, suspended, to be automatically remitted if not vacated before 6 January 1998; and restriction and extra duty for 45 days.  The forfeiture portion of the punishment was subsequently vacated because the applicant failed to go at the time prescribed to his appointed place of duty on
22 October 1997.

7.  On 14 October 1997, the company commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12 for misconduct – commission of a serious offense, based on testing positive on a urinalysis at least three times and for receiving two field grade Article 15s for the same offense (abusing marijuana and cocaine).  The commander recommended the applicant receive a General, Under Honorable Conditions Discharge Certificate.

8.  On 14 October 1997, the applicant consulted with legal counsel and he waived his rights to submit statements in his own behalf and to be represented by counsel.  He also acknowledged that he could expect to encounter substantial prejudice in civilian life as the result of a general discharge.

9.  The company commander's recommendation for separation noted that the applicant had received two NJP's for drug use in April 1997 and August 1997 and that he had tested positive for drugs on at least three occasions.  He recommended that any further rehabilitation be waived as it would not produce a quality Soldier.

10.  On 14 October 1997, the intermediate commander recommended approval with a General, Under Honorable Conditions Discharge Certificate.

11.  On 24 October 1997, the separation authority approved the chain of command's recommendation, waived further rehabilitation and counseling, and directed the issuance of a General, Under Honorable Conditions Discharge Certificate.

12.  On 31 December 1997, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct.  He had completed 2 years, 11 months, and 20 days of creditable active service with no lost time.  

13.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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 include commission of a serious offense.  An offense is serious if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial.  Action is to be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision.

14.  The Table of Maximum punishments of the Manual for Courts-Martial provides that a punitive discharge is authorized for any illegal drug offense.



DISCUSSION AND CONCLUSIONS:

1.  The applicant states that, 11 days short of his ETS, he was discharged for drug abuse.  He would like his discharge date changed so that he will have
3 years of continuous military service and qualify for civilian Federal service.

2.  He could have been processed for separation for his first illegal drug offense which occurred in January/February 1997, almost a year before he was actually discharged.  However, it appears his superiors gave him a chance to amend his behavior.  However, he repeated his misconduct which does not provide for any mitigating factor for favorable consideration at this time.

3.  The applicant claims he "takes full responsibility for his immature actions."  However, he was over 27 years old and a junior college graduate who had completed approximately 2 years of honorable service at the time of his first offense.  For an individual to blame his/her misconduct on immaturity is, in itself, refusal to accept responsibility.

4.  The ABCMR does not grant requests for correction of records solely for the purpose of making the applicant eligible for employment.  Every case is individually decided based upon its merits when an applicant requests a change in his or her DD Form 214.

5.  Records show that the applicant was 27 years of age at the time of his numerous acts of indiscipline and offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

6.  In view of the foregoing there is no basis for granting the applicant's requested 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)                                         AR20090011714



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ABCMR Record of Proceedings (cont)                                         AR20090011714



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