IN THE CASE OF:
BOARD DATE: 18 February 2010
DOCKET NUMBER: AR20090016861
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 general discharge be upgraded to an honorable discharge.
2. The applicant provides no argument or statement in mitigation in support of his application.
3. The applicant provides no documents 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was born on 4 December 1965 and enlisted in the Regular Army on 19 May 1988 for a period of 4 years and training as a tactical telecommunications center operator. He completed his basic training at Fort Dix, New Jersey and his advanced individual training at Fort Gordon, Georgia before being transferred to Panama on 24 October 1988.
3. On 3 January 1989, nonjudicial punishment was imposed against the applicant for the wrongful use of cocaine between the period of 25 September and 25 October 1988. His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay and extra duty.
4. On 22 May 1989, the applicants commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct based on his commission of a serious offense. The commander cited as the basis for the recommendation that the applicant had tested positive for cocaine on at least four occasions.
5. After consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.
6. The appropriate authority approved the recommendation for discharge on 25 May 1989 and directed that he be furnished a General Discharge Certificate.
7. Accordingly, he was discharged under honorable conditions on 9 June 1989 under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct drug abuse. He had served 1 year and 21 days of total active service.
8. There is no evidence in the available records to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.
9. Army Regulation 635-200 serves as the authority for enlisted separations. Paragraph 14-12c(2) provides for the separation of enlisted Soldiers for misconduct based on the abuse of illegal drugs. It states, in pertinent part, that abuse of illegal drugs is serious misconduct that may warrant separation action based on commission of a serious offense. The separation reason in all separations authorized by this paragraph will be misconduct drug abuse.
DISCUSSION AND CONCLUSIONS:
1. The applicants administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.
2. Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.
3. 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) AR20090016861
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ABCMR Record of Proceedings (cont) AR20090016861
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