IN THE CASE OF:
BOARD DATE: 19 May 2010
DOCKET NUMBER: AR20090019200
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 his discharge under other than honorable conditions be upgraded to a general discharge.
2. The applicant states:
* at the time of his discharge he asked his superiors for treatment for drug abuse and he was discharged for misconduct (drug abuse)
* he is currently in a rehabilitation program and trying to change his life
* his current discharge status will be a detriment in achieving his goals
3. The applicant provides:
* certificate of participation for attendance of 840 hours at the California Substance Abuse Treatment Facility at Corcoran
* Walden House certificate of completion of the orientation phase of the Walden House Substance Abuse Program
* credentials of ministry
* certificate of participation for attendance of 40 hours in the Narcotics Anonymous Twelve Step Program at the California Substance Abuse Treatment Facility at Corcoran
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 Regular Army on 6 September 1979. He completed one-station unit training and was awarded military occupational specialty (MOS) 16P (air defense artillery short range missile crewman) and was later awarded MOS 16S (man portable air defense systems crewmember). He attained the rank/grade of sergeant on 21 December 1981 and remained on active duty through continuous reenlistments.
3. On 28 April 1986, nonjudicial punishment was imposed against the applicant for using cocaine. His punishment consisted of a reduction to E-4 (suspended), a forfeiture of pay, extra duty, and restriction.
4. On 18 September 1986, a bar to reenlistment was imposed against the applicant.
5. The facts and circumstances surrounding the applicant's discharge are not contained in the available records. However, the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions on 27 April 1987 under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct (drug abuse). He had served a total of 7 years, 7 months, and 22 days of creditable active service.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs. The issuance of a discharge under other than honorable conditions was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the member's overall record.
7. Army Regulation 635-200, paragraph 3-7b, 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:
The applicant's contentions were carefully considered. However, in the absence of evidence to the contrary, it must be presumed that the applicant's separation was administratively correct and in conformance with applicable regulations. Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service. As a result, there is no basis for granting the applicant's request to upgrade his discharge to a general discharge.
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) AR20090019200
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ABCMR Record of Proceedings (cont) AR20090019200
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