IN THE CASE OF:	

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090019153


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 further upgraded to an honorable discharge and restoration of his pay grade of E-2.

2.  The applicant states that since the incident occurred there have been numerous cases under the same violation that have received a lesser penalty, i.e., the cover-up of combat Soldiers overseas and earlier cases in prior years.  The submitted information, past cases of military punishment, and the passage of time should be evaluated.

3.  In support of his application, he provides copies of his twelve training certificates dated 1991, 1992, 1997, 2005, and 2006; six character reference letters dated 1994 and 2009; his Waste Management Operator Development Program Detail; his undergraduate transcripts; a Standard Form 85P (Privacy Act Statements); and his driver's license.

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 military records show that he enlisted in the Regular Army in pay grade E-1 on 2 February 1983.  He completed training and was awarded military occupational specialty 67V (Observation Scout Helicopter Repairer).  He was promoted to pay grade E-4 on 1 September 1984.  He served in Alaska from 26 July 1983 to 29 July 1987.

3.  On 8 November 1985, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the wrongful use of marijuana between 13 July 1985 and 23 July 1985.  His punishment included a forfeiture of $405.15 pay and 7 days of extra duty and restriction.  He did not appeal the nonjudicial punishment.

4.  On 25 November 1986, he received counseling concerning a positive urinalysis which indicated he had continued to abuse illegal drugs and he was recommended for punishment under Article 15, UCMJ.  He was also advised that he would be processed for separation under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 14.

5.  On 4 December 1986, the applicant accepted nonjudicial punishment under Article 15, UCMJ, for the wrongful use of cocaine on or about 14 October 1986.  His punishment included a reduction to pay grade E-3, a forfeiture of $424.00 pay for 2 months, and 45 days of extra duty.  He did not appeal the punishment.

6.  On 7 January 1987, the applicant accepted punishment under Article 15, UCMJ, for failing to go to his appointed place of duty on 27 December 1986.  His punishment included a reduction to pay grade E-2 and 14 days of extra duty.  He did not appeal the punishment.

7.  On 13 February 1987, his company commander recommended he be barred from reenlistment for the wrongful use of marijuana and failing to go to his appointed place of duty.  The bar to reenlistment was approved on 17 February 1987.

8.  In a memorandum for record, dated 25 February 1987, his company commander stated that after reviewing the applicant's file, he found a history of misconduct and counseling for substandard performance and initiated chapter elimination proceedings.  He felt the applicant should have been eliminated from the Army earlier with a general discharge in the interest of expediency.  The company commander also stated the applicant's record in 1986 indicated a Soldier who was not contributing and had become a liability.

9.  On 21 January 1987, the applicant's company commander notified him that he was being recommended for separation for the commission of a serious offense, abuse of illegal drugs, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, with a general discharge.

10.  On 21 January 1987 after consulting with counsel, the applicant acknowledged receipt of the contemplated action to separate him for illegal drugs.  He requested consideration of his case by an administrative board and elected not to submit a statement in his own behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He also acknowledged the result of the issuance of a discharge under other than honorable conditions.

11.  On 21 January 1987, his applicant's company commander recommended his separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, with a general discharge.

12.  On 23 January 1987, his battalion commander recommended the conditional waiver submitted by the applicant be disapproved and that he receive a discharge under other than honorable conditions.  He stated that Soldiers who used drugs had no place in the Army.

13.  On 2 March 1987, a board of officers found him undesirable for further retention in the military service because of serious misconduct.

14.  On 26 March 1987, the appropriate separation authority approved the findings and recommendations of the administrative separation board to discharge the applicant from the service under the provisions of Army Regulation 635-200, chapter 14, for abuse of illegal drugs and directed he be issued an under other than honorable discharge.

15.  The applicant was discharged in pay grade E-1 on 8 April 1987 under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct-commission of a serious offense with an under other than honorable conditions discharge.  He was credited with 4 years, 2 months, and 7 days of net active service.

16.  On 3 January 1997, the Army Discharge Review Board (ADRB) determined the applicant's discharge was improper based on current standards.  The ADRB determined the characterization of his discharge was too harsh for the offense committed and granted partial relief in the form of a general under honorable conditions discharge.  Accordingly, his rank and pay grade was to be restored to pay grade E-2.

17.  He was reissued a DD Form 214 changing his character of service to under honorable conditions (general) and the narrative reason to misconduct.  Item 4a (Grade Rate or Rank) of his DD Form 214 remained "PV1" and item 4b (Pay Grade) remained "E-1."

18.  He submitted copies of twelve training certificates received post-service as an emergency medical technician.  He also submitted copies of five character reference letters attesting to his valuable work ethic and being recognized as an asset to any company.

19.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.

20.  Paragraph 14-12c of that regulation also provided for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs.  It provided that individuals identified as drug abusers, grades E-1 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could 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 was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

21.  Army Regulation 635-200, paragraph 3-7a, further provides that an honorable discharge was a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.


DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  The applicant's contentions have been considered.  However, he tested positive for marijuana and cocaine.  He accepted punishment under Article 15 in November 1985 and December 1986 for each offense.  The incident that led to his discharge was a serious act of misconduct.  At the time of his discharge, the issuance of a discharge under other than honorable conditions was normally considered appropriate.  His company commander recommended he receive a general discharge.  His battalion commander recommended the conditional waiver submitted by the applicant to accept a general discharge so long as the separation authority characterized his service as no less than general under honorable conditions be disapproved.  His battalion commander recommended he receive an under other than honorable conditions discharge.  The board of officers determined he was undesirable for further retention in the military because of the seriousness of his misconduct and also recommended the issuance of an under other than honorable conditions discharge.

3.  In January 1997, the ADRB determined that under current standards the reason listed for the applicant's discharge was misconduct-commission of a serious offense and the characterization of his discharge was too harsh.  The board voted to change his narrative reason to misconduct, upgrade his discharge to a general discharge, and restoration to pay grade E-2.

4.  The evidence shows the applicant's misconduct under former and current standards diminished the quality of his overall service below that meriting a fully honorable discharge.  He was properly separated for his misconduct.  The documentation submitted in support of his application was reviewed; however, the documentation provided neither probative evidence nor a convincing argument in support of a further upgrade of his general discharge.

5.  The evidence of record confirms the applicant's discharge processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons were appropriate considering all the facts of the case.

6.  It is noted that an administrative error occurred when he was reissued a DD Form 214 in 1997 in that the pay grade of E-2 was not restored to the applicant.  Therefore, based on the ADRB directive, it would now be appropriate to correct his DD Form 214 to show his pay grade of E-2 was restored on 30 January 1997.

7.  In view of the foregoing, the applicant's records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ____X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant's pay grade E-2 was restored by an Army Discharge Review Board directive and providing him with a corrected separation document showing in item 4a the rank of PV2 and in item 4b the pay grade E-2.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an upgrade of his general discharge to an honorable discharge.



      __________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)                                         AR20090019153



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ABCMR Record of Proceedings (cont)                                         AR20090019153



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