IN THE CASE OF:	

		BOARD DATE:	  06 May 2010

		DOCKET NUMBER:  AR20090014236 


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 his general discharge be upgraded to honorable.

2.  The applicant states he was not given full awareness of the situation or his options.

3.  The applicant provides no documentary evidence 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 enlisted in the Regular Army on 25 March 1987 for a period of 4 years.  He successfully completed training and was awarded military occupational specialty 93F (field artillery meteorological crewmember).  He attained the rank of private first class on 1 November 1987.

3.  On 15 June 1988, nonjudicial punishment was imposed against the applicant for possessing drug paraphernalia (upon testing, the paraphernalia revealed the presence of cocaine).  His punishment consisted of a reduction to E-1, a forfeiture of pay, extra duty, and restriction.

4.  On 10 August 1988, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct (abuse of illegal drugs).

5.  On 10 August 1988, the applicant was advised by counsel of the basis for the contemplated action to separate him for abuse of illegal drugs under the provisions of Army Regulation 635-200, chapter 14, and its effects, of the rights available to him, and the effect of any action taken by him in waving his rights.  He acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He elected not to submit a statement in his own behalf.

6.  On 11 August 1988, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, chapter 14, for misconduct (abuse of illegal drugs).  He cited the applicant was found to be in possession of cocaine and drug paraphernalia and he subsequently tested positive for cocaine on a urinalysis.

7.  On 12 August 1988, the separation authority approved the recommendation for discharge (misconduct - abuse of illegal drugs) and directed the issuance of a general discharge.

8.  Accordingly, the applicant was discharged under honorable conditions on 18 August 1988 under the provisions of Army Regulation 635-200, paragraph 
14-12c(2), for misconduct (abuse of illegal drugs).  He had served a total of 1 year, 4 months, and 24 days of creditable active service.

9.  On 22 January 1997, the Army Discharge Review Board denied the applicant's request for upgrade to an honorable discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.

11.  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 contends he was not given full awareness of the situation or his options.  However, evidence of record shows on 10 August 1988 he was advised by counsel of the basis for the contemplated action to separate him for abuse of illegal drugs under the provisions of Army Regulation 635-200, chapter 14 and its effects; of the rights available to him; and the effect of any action taken by him in waving his rights.  He also acknowledged he might encounter substantial prejudice in civilian life if a general discharge were issued.

2.  The applicant's record of service included one nonjudicial punishment for possessing drug paraphernalia with the presence of cocaine.  He also tested positive for cocaine on a urinalysis.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the 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)                                         AR20090014236



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ABCMR Record of Proceedings (cont)                                         AR20090014236



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