IN THE CASE OF:	

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090015645 


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 that his discharge under honorable conditions (general) be upgraded to an honorable discharge and that his narrative reason for separation be changed from misconduct.

2.  The applicant states that he was discharged as a result of a positive urinalysis test.  He states that he was not counseled or offered any treatment and that he had low self esteem and issues with drugs immediately upon his discharge.  He states that he has since straightened out his life and that he wants to put his past behind him and close that chapter of his life.  He states that he realizes that the loss of his security clearance was the primary reason for his discharge as it was crucial to his military occupational specialty.  He states that he matured late in life and that as a result, he has suffered the severe consequences.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); Substance Abuse Program Progress Notes; and an undated statement pertaining to his post service accomplishments.

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 25 July 1986, the applicant enlisted in the Regular Army in Brooklyn, New York, for 3 years, in the pay grade of E-1.  He successfully completed his training as a nuclear weapons specialist.  He was transferred to Germany on 30 January 1987.

3.  The applicant's records show that he was counseled on fourteen separate occasions between 1 May 1987 and 5 July 1988 for failure to go to his appointed place of duty; being late for formation; failure to meet clothing criteria; being disrespectful to a noncommissioned officer; failure to obey a lawful order from a noncommissioned officer; being relieved from gate guard; failure to pay his debts; financial indebtness; and possession of nunchucks (a prohibited item).

4.  The applicant extended his 3-year period of enlistment to 3 years and 7 months on 28 April 1988.

5.  On 6 December 1988, the applicant submitted a urine specimen that tested positive for THC (Tetrahydrocannabinol).

6.  Nonjudicial punishment (NJP) was imposed against the applicant on 25 January 1989 for wrongfully using marijuana, a controlled substance.  His punishment consisted of a reduction in pay grade, a forfeiture of pay and extra duty.  The applicant submitted an appeal to the NJP contending that all of the evidence had not been presented; that the punishment was too harsh; and that the punishment should be mitigated or suspended.  His appeal was denied on   24 February 1989.

7.  As a result of his positive urinalysis, his security clearance was revoked on 21 March 1989.

8.  On 2 May 1989, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct – commission of a serious offense.  His commander cited two dishonored checks, a traffic offense, wrongful possession of a prohibited item and wrongful use of a controlled substance as the basis for his recommendation for discharge.  The applicant acknowledged receipt of the notification on 17 May 1989 and, after consulting with counsel, he elected to submit a statement in his own behalf.
9.  In a statement dated 25 May 1989, the applicant contended that the recommendation for discharge was the result of an attempt to cover up other incidents that pointed to negligence on the part of his chain of command.  He stated that there had been other incidents of wrongful use of marijuana in his unit that never resulted in the other individuals being chaptered out of the Army.  He stated that he was never fined for the traffic violation and the matter was dropped and that the possession of a prohibited item issue was set aside by an individual in his chain of command.  He stated that he was assured that after his NJP was imposed against him, he would be returned to duty and that he had also learned that his platoon sergeant had been intimately involved with his wife.  He stated that he was in the process of obtaining legal custody of his children and being chaptered out of the Army would hinder his chances, cause him financial problems later in society and the resulting prejudice would greatly affect his career plans.  He stated that it had not been standard practice in the company to chapter someone out of the Army for one positive urinalysis and be believed that he was the victim of prejudice.  The applicant concluded his statement by requesting that he be given the second chance that he was never given and that the Army not turn its back on the injustice to which he was being subjected.

10.  The appropriate authority approved the recommendation for discharge and directed the issuance of a general discharge.

11.  Accordingly, on 18 August 1989, the applicant was discharged under honorable conditions, under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct – commission of a serious offense.  He had completed 3 years and 24 days of net active service this period and he was furnished a General Discharge Certificate.

12.  The available records do not show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge or a change to his narrative reason for separation within that board's 15-year statute of limitation.

13.  The applicant submits Substance Abuse Program Progress Notes which show that he successfully completed a substance abuse program approximately 6 months prior to 1 September 2009.  He also submits an undated statement pertaining to his post-service accomplishments.

14.  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, convictions by civil authorities, desertion, or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Chapter 14 also 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.

15.  Paragraph 3-7a of Army Regulation 635-200 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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  Paragraph 3-7b of Army Regulation 635-200 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 general discharge should be upgraded to an honorable discharge and that his narrative reason for separation be changed from misconduct.

2.  His contentions have been noted and his post-service accomplishments have been considered.  However, the applicant has not shown error or injustice in the type of discharge that he received or in the narrative reason for his separation.

3.  The applicant's records show that prior to his discharge he was counseled on fourteen separate occasions for his acts of misconduct.  His discharge was not based on one isolated incident.  His commander cited two dishonored checks, a traffic offense, wrongful possession of a prohibited item and wrongful use of a controlled substance as the basis for his recommendation for discharge.  Considering the nature of his offenses and his numerous acts of indiscipline, it does not appear that the type of discharge that was directed and the narrative reason for his separation are too harsh as his overall service was not completely honorable.

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 has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090015645



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ABCMR Record of Proceedings (cont)                                         AR20090015645



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