IN THE CASE OF:
BOARD DATE: 10 June 2010
DOCKET NUMBER: AR20100000098
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 narrative reason for separation be changed.
2. The applicant states when he went home on leave, he learned that a family member was hooked on drugs and living on the streets. He located the family member but it took him too long to convince her to come with him. Unfortunately, she was in a drug house which was filled with drug smoke.
3. He states he realizes he should not have gone into the drug house, but he received certificates and very productive reviews after he returned to Fort Lee, VA. His behavior, attitude, soldiering and love of being a Soldier were not those of a drug abuser.
4. 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 that he enlisted in the Regular Army on 5 April 2001.
3. On 29 August 2001, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 23 July to 18 August 2001.
4. On 24 September 2001, the applicant accepted NJP for wrongful use of cocaine which was detected during a urinalysis on 20 August 2001; for failure to obey an order; and failure to be at his appointed place of duty at the time prescribed.
5. On 2 October 2001, the applicant's commander notified him of his intent to recommend him for discharge due to misconduct commission of a serious offense as a result of the wrongful use of cocaine. He was also advised of his rights.
6. The applicant submitted a conditional waiver wherein he waived a board of officers contingent upon receiving not less than a general discharge.
7. The applicant's conditional waiver was accepted by the appropriate authority. Accordingly, on 29 October 2001, the applicant was issued a general discharge. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows in Item 25, Separation Authority, Army Regulation 635-200 (Enlisted Separations), paragraph 14-12c(2). Item 28, Narrative Reason for Separation, shows "Misconduct." The applicant had 6 months of creditable active service.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 14-12c, misconduct, commission of a serious offense, applies to the separation of individuals who committed a serious military or civil offense, if the specific circumstance of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the manual for courts-martial. When separation is ordered under this paragraph, an under other than honorable conditions (UOTHC) discharge is normally considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant was discharged due to the use of cocaine, which is serious misconduct. As such, the Narrative Reason for Separation properly reflects "Misconduct."
2. Contrary to the applicant's contention that he was an exemplary Soldier, he accepted NJP for being AWOL for 26 days, failure to obey an order, and failure to be at his appointed place of duty at the time prescribed. Such a record of indiscipline all within a 6-month period of service, in combination with his positive urinalysis for cocaine, is not indicative of an exemplary Soldier.
3. 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) AR20100000098
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100ARMY | BCMR | CY2012 | 20120008637
The applicant requests an upgrade of his general discharge to an honorable discharge. The applicant states all of his service up to the time of his infraction was completely honorable. There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.
ARMY | BCMR | CY2009 | 20090020943
The applicant requests that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 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. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
ARMY | BCMR | CY2009 | 20090011714
On 14 October 1997, the company commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 14-12 for misconduct commission of a serious offense, based on testing positive on a urinalysis at least three times and for receiving two field grade Article 15s for the same offense (abusing marijuana and cocaine). The company commander's recommendation for separation noted...
ARMY | BCMR | CY2014 | 20140010870
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, an upgrade of his general discharge (GD) to a fully honorable discharge (HD). The commander cited AWOL from on or about 20 February to on or about 26 June 2009 and testing positive for marijuana and cocaine as the basis for his recommendation.
ARMY | BCMR | CY2012 | 20120006444
The applicant requests, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to upgrade his general under honorable conditions character of service to honorable and change his narrative reason for separation to something more favorable. His DD Form 214 shows he was discharged in accordance with Army Regulation 635-200, paragraph 14-12c(2)(a), by reason of "misconduct abuse of illegal drugs" with a character of service of under honorable...
ARMY | BCMR | CY2013 | 20130007182
On 9 September 2003, the applicant's commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 14, paragraph 14-12c, for commission of a serious offense. On 9 September 2003, the applicant's commander recommended separation with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12c. The evidence of record shows the applicant's administrative...
ARMY | BCMR | CY2010 | 20100025287
On 27 April 1988, the applicant's immediate commander, CPT MJS, notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct - commission of a serious offense - abuse of illegal drugs. On 20 June 1988, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct -...
ARMY | BCMR | CY2013 | 20130014085
On 12 August 2009, his unit commander notified him of the initiation of separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense. e. Paragraph 1412c(2) abuse of illegal drugs is serious misconduct. While the specific date of his first drug offense is not of record, his medical records show he tested positive at least twice for illegal drug use.
ARMY | BCMR | CY2009 | 20090009531
Application for correction of military records (with supporting documents provided, if any). As a result, the authority and reason for discharge documented on his DD Form 214 accurately reflects the reason for separation. The evidence of record confirms the approval authority directed that the applicant be issued a GD although an administrative error was made and the applicant was issued an HD.
ARMY | BCMR | CY2010 | 20100014202
The prevalence of illegal valium obtained by a member of the applicant's unit while he was present, the fact that his doctor could not remember prescribing him valium, and the fact that the applicant was unable to produce a prescription for valium are sufficient to show beyond a reasonable doubt he wrongfully used valium. However, as indicated in his commander's letter, dated 31 January 2007, he was being processed for separation based on his valium use in Iraq and a positive urinalysis for...