BOARD DATE:	  30 December 2009

		DOCKET NUMBER:  AR20090013509 


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 under other than honorable conditions discharge to a general or an honorable discharge.

2.  The applicant states that he was discharged because of the racial prejudices of a senior noncommissioned officer and the unit first sergeant.

3.  The applicant provides two character reference letters and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 29 September 1992, 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 (RA) for a period of 4 years on 3 September 1986.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 94B (Food Service Specialist).  He also executed a 3-year reenlistment in the RA on 21 June 1990.  He was promoted through the ranks to specialist four/E-4.

3.  The applicant's records also show he served in Germany from 18 November 1986 to 17 November 1988 and Southwest Asia from 29 October 1990 to 19 April 1991.   His records further show he was awarded the Army Service Ribbon, the Overseas Service Ribbon, the National Defense Service Medal, the Southwest Asia Service Medal with three bronze service stars, the Kuwait Liberation Medal - Saudi Arabia, the Army Lapel Button, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant's records contain multiple counseling statements by different members of his chain of command for various infractions including instances of failure to be at the appointed place of duty, driving with a suspended license, missing formation, multiple letters of indebtedness, suspension of check cashing privileges, and writing bad checks.

5.  On 27 February 1992, the applicant participated in a unit urinalysis and his urine sample tested positive for marijuana.

6.  On 7 April 1992, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between 27 January 1992 and 27 February 1992.  His punishment consisted of a reduction to private/E-1, a forfeiture of $392.00 pay per month for 2 months (suspended until 7 October 1992), 45 days of restriction, and 45 days of extra duty.

7.  On 5 May 1992, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his wrongful use of marijuana, dishonored checks, and several other infractions.  The applicant acknowledged receipt of this bar but elected not to submit a statement on his own behalf.  The bar was ultimately approved by his battalion commander on 10 May 1992.

8.  On 18 May 1992, the applicant participated in a unit urinalysis and his urine sample again tested positive for marijuana.

9.  On 8 July 1992, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana between 18 April 1992 and 18 May 1992.  His punishment consisted of a forfeiture of $392.00 pay per month for 2 months and 45 days of extra duty.

10.  On 17 June 1992, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) for misconduct - commission of a serious offense.  Specifically, the immediate commander cited the applicant's wrongful drug use and instances of dishonored checks.  He recommended an under other than honorable conditions discharge.

11.  On 17 June 1992, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and 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 an administrative separation board and a personal appearance before an administrative separation board.  However, he also submitted a request for a conditional waiver in which he voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general under honorable conditions.  He further elected not to submit a statement on his own behalf.

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

13.  On 17 June 1992, the applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct - commission of a serious offense.  Specifically, the immediate commander cited the applicant's wrongful drug use and instances of dishonored checks.  He recommended an under other than honorable conditions discharge.

14.  In June or July 1992, the applicant's intermediate commander recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions character of service.

15.  On 24 July 1992, the applicant's senior commander also recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions character of service.

16.  On 5 August 1992, the separation authority ordered an administrative separation board be convened to determine the applicant's fitness for further military service.

17.  On 27 August 1992, the applicant waived consideration of his case by an administrative separation board, waived personal appearance before an administrative separation board, waived submitting a conditional waiver, and elected not to submit a statement on his own behalf.  He indicated that "this waiver specifically supplements the waiver and conditional waiver executed on 17 June 1992."

18.  On 11 September 1992, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - abuse of illegal drugs and directed the applicant be furnished an under other than honorable conditions discharge.  Accordingly, the applicant was discharged on 29 September 1992.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 with an under other than honorable conditions discharge.  This form confirms he completed a total of 6 years and 27 days of creditable military service.

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

20.  The applicant submitted two character reference letters in support of his request as follows.

	a.  In an undated letter, the applicant's work supervisor states that the applicant has proven himself to be reliable and a conscious employee.  He has progressed from a cold cook to suites supervisor.  He is also a solid citizen, a dependable and trustworthy person, and a good friend.

	b.  In a letter, dated 3 April 2009, the applicant's priest describes him as a diligent and accomplished cook.  He is involved in the church and volunteers in the food bank.

21.  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, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  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.

22.  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.

23.  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 contends that his under other than honorable conditions discharge should be upgraded.

2.  The evidence of record shows the applicant had a history of disciplinary problems including two instances of drug use, multiple instances of dishonored checks, and several other infractions.  As a result, 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.  He was accordingly discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his misconduct.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  Therefore, the underlying reason for the applicant's discharge was his misconduct.

3.  There is no evidence in the applicant's records and the applicant did not provide any substantiating evidence that shows his discharge was due to racial issues as the evidence of record shows the applicant's discharge was due to his drug use.

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)                                         AR20090013509



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ABCMR Record of Proceedings (cont)                                         AR20090013509



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