IN THE CASE OF:	  	

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20100000824 


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 an upgrade of his general, under honorable conditions discharge to a fully honorable discharge.

2.  The applicant states he was stationed in an environment that was prone to substance abuse with no adequate treatment available or given to control this disease.  

3.  The applicant indicated that he submitted a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and what appears to be a certificate of completion of a substance abuse program; however, there were no documents submitted with 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's record shows he enlisted in the Regular Army for a period of 4 years on 11 February 1986 and held military occupational specialty 88N (Traffic Management Coordinator).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's record further shows he was awarded the Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  His record reveals a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 23 October 1986, for failure to repair.  His punishment consisted of 14 days of extra duty and restriction. 

	b.  On 19 February 1987, for failure to repair.  His punishment consisted of 7 days of extra duty.

	c.  On 9 July 1987, for being absent without leave (AWOL) from on or about 23 June 1987 to on or about 9 July 1987.  His punishment consisted of a reduction to private/E-2 and 14 days of extra duty.

5.  On 5 August 1987, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his three instances of NJP as well as six instances of counseling by several members of his chain of command for various infractions, specifically writing bad checks and failing to pay his bills.  His bar was ultimately approved by his brigade commander. 

6.  On 18 August 1988, he was apprehended by civil authorities for the civilian offense of driving under the influence (DUI) of alcohol and subsequently received a letter of reprimand and had his driving privileges suspended by the Fort Ord, CA, Garrison Commander.  

7.  On 29 August 1988, at Fort Ord, CA, he submitted a urine sample that tested positive for cocaine.

8.  On 24 October 1988, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using cocaine at some unknown location between       29 July 1988 and 29 August 1988.  His punishment consisted of a suspended forfeiture of $335.00 pay per month for 2 months, a reduction to private/E-1, and 45 days of extra duty.

9.  On 27 October 1988, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct - commission of a serious offense - abuse of illegal drugs.  The immediate commander also notified him that he intended to recommend his service be characterized as general, under honorable conditions.

10.  On 27 October 1988, he acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel, and he was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a separation board and a personal appearance before a separation board, and elected not to submit a statement in his own behalf.  He further indicated that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

11.  On 27 October 1988, his immediate commander initiated separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200 for misconduct-commission of a serious offense – abuse of illegal drugs.  

12.  On 28 October 1988, his intermediate commander reviewed the recommended separation action and recommended approval of the applicant's discharge with a general, under honorable conditions discharge.

13.  On 2 November 1988, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - commission of a serious offense - abuse of illegal drugs and directed his service be characterized as general, under honorable conditions.  On 18 November 1988, the applicant was accordingly discharged.  

14.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - commission of a serious offense - abuse of illegal drugs with a character of service of general, under honorable conditions.  This form further confirms he had completed 2 years, 9 months, and 5 days of creditable active military service and he had 3 days of lost time.

15.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 
16.  Army Regulation 635-200, in effect at the time, 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 include 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 may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

17.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded to an honorable discharge.

2.  The applicant's service records reveals a history of misconduct that spanned throughout his military service, including four instances of NJP, one instance of AWOL, a bar to reenlistment, a civilian arrest for DUI, a letter of reprimand, and a suspension of his driving privileges.  His misconduct culminated in a positive urinalysis for cocaine.  

3.  The evidence of record shows the applicant committed a serious offense by unlawfully abusing illegal drugs as evidenced by his positive urinalysis for illegal drugs.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20100000824





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ABCMR Record of Proceedings (cont)                                         AR20100000824



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