IN THE CASE OF:	  

		BOARD DATE:	  17 February 2010

		DOCKET NUMBER:  AR20090014624 


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 the character of service of his general under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, he lost all of his military service records and requests a review of his discharge based upon his military personnel records.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 U.S. Army Reserve on 8 July 1977 and entered active duty in the Regular Army (RA) for a period of 4 years on 21 July 1977.  Upon completion of training, he was awarded military occupational specialty
11B (Infantryman).

3.  The applicant continued to serve on active duty in the RA and attained the rank of staff sergeant/pay grade E-6.

4.  On 15 April 1985, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order.  His punishment consisted of reduction to pay grade E-5.  On 17 April 1985, the applicant appealed the NJP and submitted additional matters to the brigade commander.  On 7 May 1985, the applicant's appeal was denied.

5.  Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky, memorandum, dated 19 July 1985, subject:  Letter of Reprimand, shows the commanding general reprimanded the applicant for his civil conviction on 7 June 1985 for driving under the influence (DUI).  

6.  On 29 July 1985, the applicant received NJP under Article 15, UCMJ, for failing to go to his appointed place of duty.  His punishment consisted of reduction to pay grade E-4 (suspended for 90 days) and 30 days of extra duty.

7.  On 16 June 1986, the applicant received NJP under Article 15, UCMJ, for wrongfully using marijuana.  His punishment consisted of reduction to pay grade E-4, forfeiture of $494.00 pay per month for two months, 45 days of restriction, and 45 days of extra duty.

8.  On 8 September 1986, the applicant received NJP under Article 15, UCMJ, for wrongfully using marijuana.  His punishment consisted of reduction to pay grade E-1, forfeiture of $319.00 pay per month for two months, 45 days of restriction, and 45 days of extra duty.

9.  On 19 November 1986, the applicant's commander notified the applicant that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), based on commission of a serious offense (abuse of illegal drugs).  The commander noted that the applicant repeatedly used drugs and alcohol in an abusive manner, tested positive on two urinalysis tests for the use of marijuana, was given a letter of reprimand for DUI, and he refused to help rehabilitate himself.  The applicant was advised of his rights and the separation procedures involved.

10.  On 19 November 1986, the applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

   a.  He acknowledged that military legal counsel for consultation was available to assist him.

	b.  He waived consideration of his case by a board of officers and also waived personal appearance before a board of officers.

   c.  He waived representation by counsel and elected not to submit statements in his own behalf.

   d.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him.  He was also advised that as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and States laws, and he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

   e.  The applicant acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable, he could make application to the Army Discharge Review Board or the ABCMR for upgrading; however, an act of consideration by either board did not imply that his discharge would be upgraded.

   f.  The applicant placed his signature on the document.
   
11.  On 19 November 1986, the company commander recommended the applicant be discharged from the U.S. Army under the provisions of Army Regulation 635-200, chapter 14, for misconduct based on commission of a serious offense.

12.  The battalion commander waived the rehabilitative transfer requirements and recommended approval of the separation action.

13.  On 20 November 1986, the colonel serving as the special court-marital authority and the authorized separation authority in the applicant's case approved the applicant's separation.  The separation authority also directed the applicant be issued a General Discharge Certificate.


14.  The applicant's DD Form 214 shows he entered active duty this period on
21 July 1977 and he was discharged on 28 November 1986 under the provisions of Army Regulation 635-200, paragraph 14-12d, for misconduct based on drug abuse, and his service was characterized as under honorable conditions.  At the time he had completed 9 years, 4 months, and 8 days of net active service this period.

	a.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) shows the Army Service Ribbon, Overseas Service Ribbon, Good Conduct Medal (2nd Award), Army Lapel Button, Expert Marksmanship Qualification Badge with Rifle and Hand Grenade Bars, Noncommissioned Officer Professional Development Ribbon with Numeral 2, Expert Infantryman Badge, Multi-National Forces Observers Medal, Army Superior Unit Award, and Army Achievement Medal (1st Oak Leaf Cluster).

   b.  Item 18 (Remarks), in pertinent part, shows the applicant had immediate reenlistments this period from 21 July 1977 to 10 March 1981 and from 11 March 1981 to 23 August 1984.  

15.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

17.  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, in effect, his general under honorable conditions discharge should be upgraded to an honorable discharge based upon a review of his military personnel records.

2.  Records show the applicant received two awards of the Army Achievement Medal and two awards of the Army Good Conduct Medal during the period of service under review.

3.  The evidence of record also shows that during the applicant's period of military service under review he repeatedly used drugs and alcohol in an abusive manner, tested positive on two urinalysis tests for the use of marijuana, was given a letter of reprimand for DUI, received NJP on four occasions, and he was reduced from pay grade E-6 down to E-1.  Thus, the evidence of record shows the applicant's overall record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

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

5.  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)                                         AR20090014624



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090014624



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1