IN THE CASE OF:	  

		BOARD DATE:	    10 June 2010

		DOCKET NUMBER:  AR20090019806 


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 general discharge (GD) to an honorable discharge (HD).

2.  The applicant states his squad leader and platoon sergeant were harsh toward him and caused a stressful environment for him while he was in the Army.

3.  The applicant provides a Department of Veterans Affairs (VA) letter, dated 
6 October 2009.

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 record shows he enlisted in the Regular Army on 5 November 1990.  He was trained in and awarded military occupational specialty (MOS) 88M (Motor Transport Operator).

3.  The applicant's record shows that during his active duty service he earned the Army Service Ribbon and National Defense Service Medal.  His record documents no acts of valor or significant achievement and shows the highest rank/grade he attained and held while serving on active duty was private (PV2)/E-2.

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:

	a.  15 April 1991, for wrongfully using cocaine between 23 and 26 February 1991 and

	b.  4 March 1992, for wrongfully using cocaine between 24 and 27 December 1991.

5.  On 7 April 1992, the unit commander notified the applicant of his intent to initiate separation action on him under the provisions of Army Regulation
635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense.  He cited the applicant's positive drug test for cocaine as the basis for the separation action.  The unit commander recommended the applicant receive a GD.

6.  On 7 April 1992, the applicant acknowledged receipt of the separation action notification and consulted with counsel.  He was advised of the basis for the contemplated separation action, the rights available to him in connection with the separation action, and of the effect of waiving any of those rights.  After being advised of his rights, he completed an election of rights statement in which he waived consideration of his case by an administrative separation board, personal appearance before an administrative separation board, and he choose not to submit a statement in his own behalf.

7.  On 14 April 1992, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense and directed he receive a GD.  On 5 May 1992, the applicant was discharged accordingly.   The DD Form 214 he was issued at the time shows he held the rank/grade of private (PV1)/E-1 and he had completed 1 year, 6 months, and 1 day of active service.

8.  On 30 September 1998, the Army Discharge Review Board, after careful consideration and review of the applicant's military records and all other available evidence, determined the applicant's discharge was proper and equitable; and it unanimously voted to deny the applicant's request for an upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Those in pay grades below E-5 may 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 (UOTHC) is normally considered appropriate.

10.  Paragraph 14-3 of Army Regulation 635-200 contains guidance on characterization of service for members separated under chapter 14.  It states a discharge UOTHC is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is properly delegated.

11.  Paragraph 14-12c of the same regulation contains guidance on separation for misconduct based on the commission of a serious offense.  Sub-paragraph (2) identifies abuse of illegal drugs as serious misconduct and provides for separation for this reason under paragraph 14-12c.

12.  Paragraph 3-7a of the same regulation 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 is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to an HD because his squad leader and platoon sergeant were too harsh on him has been carefully considered.  However, the evidence is not sufficient to support this claim.
2.  The evidence of record confirms the applicant's separation processing for misconduct was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record documents no acts of valor or significant achievement. 
However, it does reveal a disciplinary history that includes his acceptance of NJP on two separate occasions for abuse of illegal drugs.  This drug use clearly diminished the applicant's overall record of service below that warranting a fully honorable discharge.   As a result, his record was not sufficiently meritorious to support the issue of an HD by the separation authority at the time of his discharge nor is it sufficiently meritorious to support an upgrade of his discharge at this late date.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090019806



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ABCMR Record of Proceedings (cont)                                         AR20090019806



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