IN THE CASE OF:
BOARD DATE: 08 June 2010
DOCKET NUMBER: AR20090020943
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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.
2. The applicant states he has not been in conflict with law enforcement officials or committed crimes after his discharge from the Army. He needs the upgrade so he can receive medical treatment from the local Department of Veterans Affairs hospital.
3. The applicant does not provide any additional documents.
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. The applicants military records show he enlisted in the Regular Army on 5 March 1984, was awarded the military occupational specialty of combat signaler, and was promoted to pay grade E-4.
3. On 12 November 1986, the applicant tested positive for cocaine.
4. On 9 March 1987, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongful use of cocaine.
5. On 3 April 1987, the applicant was notified by his battalion commander of his intent to recommend his discharge for misconduct for commission of a serious offense due to his positive urinalysis.
6. The applicant submitted a conditional waiver wherein he waived his right to a board of officers in exchange for receiving not less than a general discharge.
7. The applicant's conditional waiver was accepted by the appropriate authority. Accordingly, on 15 April 1987 the applicant was issued a general discharge for misconduct for commission of a serious offense.
8. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Paragraph 14-12c applies to the separation of individuals who committed a serious military or civil offense, if the specific circumstance of the offense warrants separation and a punitive discharge would be authorized for the same or a closely-related offense under the manual for courts-martial. When discharge is directed under this authority, a UOTHC discharge is normally considered appropriate.
9. 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 members 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.
10. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant does not contest the validity of his positive urinalysis.
2. The use of illegal drugs is serious misconduct which normally results in a Soldier being given a UOTHC discharge. The applicant was provided leniency when his command accepted his conditional waiver and issued him a general discharge.
3. While it is commendable that the applicant has not had any law violations since his discharge, good post-service conduct is normally insufficient to warrant upgrading a properly-issued discharge.
4. In view of the foregoing, 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.
ABCMR Record of Proceedings (cont) AR20090020943
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ABCMR Record of Proceedings (cont) AR20090020943
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