IN THE CASE OF:	

		BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090018689 


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 to have his general discharge upgraded to an honorable discharge.

2.  The applicant states it has been over 20 years since his discharge and he has addressed his substance abuse problem in a major fashion.  He also states that during his service in the Army he did not receive any help for his substance abuse and was instead forced out.

3.  The applicant provides a self-authored statement and other documents concerning his involvement in rehabilitation 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 on 22 April 1988.  He successfully completed basic combat training and advanced individual training at Fort Benning, Georgia.  He was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman).  The highest rank he held was private first class.

3.  On 18 August 1988, the applicant's commander directed him to take a urinalysis to determine if he had used drugs.  The test was positive for the use of cocaine.  On 19 August 1988, the applicant signed a sworn statement admitting that he experimented with cocaine and alcohol on 17 August 1988.

4.  The available evidence shows that nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice was imposed against the applicant on 23 August 1988 for wrongfully using cocaine on or about 17 August 1988.

5.  On 1 November 1988, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12c (Commission of a Serious Offense) of Army Regulation 
635-200 (Personnel Separations) for wrongfully using cocaine which was detected by biochemical testing of a urine sample submitted by the applicant.  The commander recommended that the applicant receive a general discharge.  On the same date, the applicant acknowledged receipt of the commander's intent to separate him.  The applicant was advised of the basis for the contemplated separation 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 acknowledged that he understood that he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.  He also elected not to submit a statement on his own behalf.

6.  Both the battalion commander and the brigade commander recommended approval of the applicant's discharge.

7.  The separation authority approved the applicant's separation action and directed that he be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  He also directed that the applicant be issued a General Discharge Certificate characterized as under honorable conditions.

8.  On 23 November 1988, the applicant was separated and was credited with 6 months and 28 days of active service.

9.  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.

10.  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 if the service is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge characterized as under honorable conditions should be upgraded to an honorable discharge because he has addressed his problem of drug abuse.

2.  The applicant's administrative separation was accomplished in compliance with regulations applicable at the time with the appropriate characterization of service.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.

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)                                         AR20090018689



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ABCMR Record of Proceedings (cont)                                         AR20090018689



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