BOARD DATE: 25 May 2010
DOCKET NUMBER: AR20090019440
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 upgrade of his under other than honorable conditions discharge to a general under honorable conditions discharge.
2. The applicant states
* he was injured in a field training exercise at Fort Hood, TX in 1987 and hospitalized for 1 week
* he was placed on oral medications for pain and rehabilitation with medication
* during the line of duty investigation he tested negative on a urinalysis test and it was determined there was no negligence on his part
* approximately 2 days after his discharge from the hospital he tested positive on a company urinalysis for cocaine even though he had a physician's note that indicated he could come up "false positive" for cocaine
* his second urinalysis showed positive for marijuana
* no one listened about his medications and the possible impact on such tests
3. The applicant provides no documentary evidence 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. Having prior service in the Regular Army from 28 September 1982 through
27 May 1986, the applicant enlisted in the Regular Army on 28 October 1987 for a period of 4 years.
3. On 3 February 1989, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a reduction to E-3 (suspended), a forfeiture of pay, and extra duty.
4. On 19 April 1989, nonjudiciall punishment was imposed against the applicant for wrongfully using cocaine. His punishment consisted of a reduction to E-2 and a forfeiture of pay.
5. The facts and circumstances surrounding the applicants discharge are not contained in the available records. However, the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending
20 July 1989 shows he was discharged on 20 July 1989 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge. He had served a total of
5 years, 4 months, and 23 days of creditable active service.
6. There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
8. 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 applicants 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.
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.
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