IN THE CASE OF:	  

		BOARD DATE:	    18 May 2010

		DOCKET NUMBER:  AR20090019296 


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, under honorable conditions, discharge be upgraded to an honorable discharge.  

2.  The applicant states he wishes to attend school.

3.  The applicant provides no additional documentation 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 military records show he enlisted in the Delayed Entry Program on 22 March 1990.  He enlisted in the Regular Army in pay grade E-2 on 24 July 1990, for 4 years.  He completed training and he was awarded military occupational specialty (MOS) 43E, Parachute Rigger.  He was promoted to pay grade E-4 on 1 March 1992.

3.  On 16 April 1992, his company commander recommended he be barred from reenlistment and the bar was approved on 29 April 1992.  A 9 March 1992 general counseling form (not available) was cited as the reason for the bar.

4.  On 14 September 1992, he accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the wrongful use of cocaine between 17 July and 20 July 1992.  His punishment included a reduction to pay grade E-1, a forfeiture of $392.00 pay for 2 months, and 45 days extra duty and restriction.  He elected to appeal the punishment and his appeal was denied on 22 September 1992.

5.  On 16 September 1992, he received chapter 13/14 separation under the provisions of Army Regulation 635-200 (Enlisted Separations) counseling.

6.  On 30 September 1992, 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.  

7.  On 30 September 1992, the applicant, after consulting with counsel, acknowledged receipt of the contemplated action to separate him for illegal drugs.  He acknowledged that he might receive a general or honorable discharge and that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He elected not to submit a statement in his own behalf.

8.  On 30 September 1992, the applicant's company commander recommended his separation under the provisions of paragraph 14-12c, chapter 14, Army Regulation 635-200, with a general discharge.  The company commander stated that the applicant had a positive urinalysis within the past 90 days and it was inappropriate to rehabilitation the Soldier.  He also stated that the applicant could not be trusted to perform his MOS as a parachute rigger due to his drug use.

9.  On 5 October 1992, his battalion commander recommended he be eliminated under the provisions of paragraph 14-12c, chapter 14, Army Regulation 635-200, with a general discharge.  

10.  On 10 October 1992, the appropriate separation authority approved his discharge and directed the issuance of a General Discharge Certificate.  

11.  On 20 October 1992, he was accordingly discharged from active duty, in pay grade E-1, under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct-abuse of illegal drugs, with a characterization of service of general, under honorable conditions.  He was credited with 2 years, 2 months, and 27 days of net active service.

12.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  Specific categories include 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.  

14.  Paragraph 14-12c(2) of this 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 first time drug abusers, grades E-5 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could 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 was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

15.  Army Regulation 635-200, paragraph 3-7a, further provided that an honorable discharge was a separation with honor and entitled 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.  The applicant's contentions have been considered; however, they do not support an upgrade of his general discharge.  While serving in the pay grade of 
E-4, he tested positive for the use of cocaine.  He accepted NJP under Article 15, UCMJ in September 1992.  Regulatory guidance provided for the separation of Soldiers in pay grades below E-5 after a first drug offense.  
2.  At the time of his discharge, the issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, it appears his overall record was taken into consideration by his command and separation authority when it directed he receive a general, under honorable conditions discharge.  

3.  The evidence shows his misconduct diminished the quality of his overall service below that meriting a fully honorable discharge.  He was properly separated for misconduct, abuse of illegal drugs, and he has submitted neither probative evidence nor a convincing argument in support of his request. 

4.  It appears his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

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

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)                                         AR20090019296



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ABCMR Record of Proceedings (cont)                                         AR20090019296



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