IN THE CASE OF:	  

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090020730 


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 general under honorable conditions discharge be upgraded to fully honorable.  

2.  The applicant states the following:

* he accepted the discharge because he did not want to go through a court-martial, even though the offense did not occur
* the Army policy for drug testing is so definitive and the Army does not believe there is room for error
* he served the Army honorably for 11 years and his type of discharge does not reflect his overall service

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army on 20 August 1982 and continued to serve on active duty through two reenlistments on 10 October 1985 and 10 January 1990.  He was promoted to staff sergeant on 1 June 1991.

3.  On 25 June 1992, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongfully using cocaine.

4.  The company commander notified the applicant of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 
14-12c for misconduct (abuse of illegal drugs).  He was advised of his rights.  The applicant's election of his rights is not available.

5.  A board of officers met on 18 November 1992 and recommended the applicant be separated from the service with a general discharge.

6.  The separation authority approved the board findings and recommendations and directed separation under the provisions of Army Regulation 635-200 by reason of commission of a serious offense (abuse of illegal drugs) with issuance of a general discharge.

7.  On 11 January 1993, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, in the rank of sergeant.  At the time of his discharge, he had completed 3 years and 2 days of creditable active service during the period under review and 10 years, 4 months, and 22 days of total active military service.

8.  The applicant's service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 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.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority might direct a general discharge if such was merited by the Soldier's overall record.  

10.  Army Regulation 635-200, paragraph 3-7a, 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 contends he accepted the discharge because he did not want to go through a court-martial, even though the offense did not occur.  The evidence of record confirms the applicant accepted nonjudicial punishment under Article 15 for wrongful use of cocaine, whereas if he had demanded court-martial he could have testified to his innocence.

2.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under chapter 14 for misconduct.  It appears the separation authority considered the applicant's prior honorable service and length of service and characterized his service as general under honorable conditions.

3.  Based on the seriousness of the applicant's offense, his service does not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  After careful review of the evidence of this case, it is determined the applicant has not presented sufficient evidence which warrants changing his general under honorable conditions discharge to a fully honorable 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)                                         AR20090020730



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ABCMR Record of Proceedings (cont)                                         AR20090020730



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