IN THE CASE OF:	  

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090012984 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that due to his drug abuse, he received a less than honorable conditions discharge.  He continues that he has been in recovery for 11 years and one of his goals is to change his discharge status.  He is now an alcohol and drug counselor and he is proud of what he learned in the Army.  He adds that he learned the importance of structure and leadership and all he is asking for is a chance to change his past.

3.  The applicant provides no additional documentary evidence in support of this 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 6 July 1983 and upon completion of initial entry training he was awarded military occupational specialty (MOS) 71L (Administrative Specialist).

3.  On 22 January 1985, the applicant accepted a summarized non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for violating the barracks visitation policy.  His punishment was
7 days of extra duty.

4.  On 4 March 1985, the applicant was counseled for disobeying a lawful order from his senior noncommissioned officer on 1 March 1985.

5.  On 21 June 1985, the applicant accepted NJP under the provisions of Article 15, UCMJ, for wrongfully using marijuana.  His punishment was reduction to private first class (PFC)/E-3 (suspended for 4 months), forfeiture of $350.00 per month for 2 months, and 45 days of extra duty.

6.  On 1 August 1985, the applicant accepted NJP under the provisions of Article 15, UCMJ, for being derelict in the performance of his duties by willfully failing to properly handle the U.S. mail, as it was his duty to do.  His punishment was reduction to private (PV2)/E-2 and 14 days of extra duty.

7.  On 6 February 1986, the applicant was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense, abuse of illegal drugs.  The applicant's unit commander based his recommendation for separation on the positive findings for tetrahydrocannabinol in the urine specimens submitted by the applicant on 23 April 1985 and
22 November 1985.  The applicant acknowledged the contemplated action on
29 April 1986 and he waived consideration of his case by an administrative separation board.

8.  On 24 March 1986, the Staff Judge Advocate's office found the separation action pertaining to the applicant legally sufficient for further processing.

9.  On 8 May 1986, the appropriate authority approved the separation action and directed the applicant receive an under other than honorable conditions discharge.

10.  On 16 May 1986, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct-commission of a serious offense, with an under other than honorable conditions discharge.

11.  Army Regulation 635-200 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 minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will 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 of regulation.

12.  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.

13.  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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The applicant has failed to show that he was improperly discharged due to illegal drug abuse.

2.  The applicant was punished under the UCMJ for violating the barracks policy, for wrongfully using marijuana, and for being derelict in the performance of his duties.  He was also counseled for disobeying a lawful order from his senior 

noncommissioned officer.  As a result, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general, under honorable conditions or honorable discharge.

3.  The applicant's post-service conduct and accomplishments are noted; however 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)                                         AR20090012984



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ABCMR Record of Proceedings (cont)                                         AR20090012984



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