BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100007473 


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 general discharge be upgraded to fully honorable.

2.  The applicant states that:

* his discharge was inequitable because it was based on two isolated incidents over 16 years of faithful service
* the action was too severe and he was never afforded the opportunity for rehabilitation
* he was awarded the Meritorious Service Medal
* he attended the Advanced Noncommissioned Officer Course and other courses
* he signed a conditional waiver in which he agreed to waive consideration by an administrative separation board contingent upon receiving an honorable discharge; however, he received a general discharge
* because limited-use evidence was used, he was supposed to receive an honorable discharge
* his overall length and quality of service, the time that has elapsed since his discharge, and his post-service accomplishments warrant an upgrade of his discharge

3.  The applicant provides 14 enclosures listed on page 4 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 29 September 1975 for a period of 3 years, training as an administrative specialist, and assignment to Fort Bragg, North Carolina.  He successfully completed his training and was assigned to Fort Bragg for his first duty assignment.

3.  He remained on active duty through a series of continuous reenlistments and was promoted to pay grade E-6 on 4 August 1982.

4.  On 14 August 1991, while the applicant was serving in an Army Reserve Officers' Training Corps Group in Maryland, he was apprehended by civilian authorities for negligent driving, driving while intoxicated (DWI), and driving under the influence of alcohol.  The applicant subsequently received a general officer memorandum of reprimand and was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

5.  Meanwhile, the applicant was under investigation by civil authorities for theft (under $300.00), attempted theft (over $300.00), credit card fraud (under $300), and attempted credit card fraud (over $300.00).  The investigation alleged that the applicant used a credit card belonging to a judge which was reported as lost to purchase merchandise on a television shopping channel.  The applicant signed for the merchandise he ordered and subsequently pled guilty to the charges.

6.  On 17 October 1991, he tested positive for cocaine and on 4 November 1991 he was declared a rehabilitative failure of the ADAPCP.

7.  On 7 November 1991, the applicant's commander initiated a bar to reenlistment against him.  He cited the offenses involving his DWI and the theft incidents as the basis for his recommendation.  The applicant elected not to submit statements in his own behalf and on 10 December 1991 the commanding general approved the bar to reenlistment.

8.  On 10 December 1991, the applicant's commander also initiated action to discharge the applicant from the service under the provisions of Army Regulation 635-200, chapter 14, due to misconduct for commission of a serious offense.  He cited initially as the basis for his recommendation the applicant's possession and use of cocaine, drunk driving, and credit card larceny offenses.  He advised the applicant that he was recommending that he be discharged under other than honorable conditions.

9.  On 18 December 1991 after consulting with counsel, the applicant submitted a request for a conditional waiver in which he agreed to voluntarily waive consideration of his case by an administrative separation board contingent upon his receiving a characterization of service no less favorable than an honorable discharge.  He indicated that because limited-use evidence was being used, no less than an honorable discharge could be issued.

10.  The applicant's commander re-initiated the notification action and removed the possession and use of cocaine from the recommendation and cited only the drunk driving and credit card larceny offenses as the basis for discharge.

11.  On 17 January 1992 after again consulting with counsel, the applicant submitted a request for a conditional waiver in which he agreed to voluntarily waive consideration of his case by an administrative separation board contingent upon his receiving a characterization of service no less favorable than a general under honorable conditions discharge.  He elected not to submit matters in his own behalf and indicated that he was making the request of his own free will and was not subjected to coercion of any kind.

12.  On 29 January 1992, the commanding general approved the recommendation for discharge and directed that he be issued a General Discharge Certificate.

13.  Accordingly, he was discharged under honorable conditions on 12 February 1992 under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct for commission of a serious offense.  He had served 13 years, 7 months, and 13 days of total active service.

14.  On 12 September 2005, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He cited essentially the same reasons to that board that he is citing to this Board.  The ADRB determined that his discharge was both proper and equitable given the circumstances and denied his request on 26 July 2006.

15.  After reviewing the supporting documents submitted by the applicant with his application, it appears that the applicant is employed by the Department of Veterans Affairs as a management analyst.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions; a pattern of misconduct; involvement in frequent incidents of a discreditable nature with civil and military authorities; and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons were therefore appropriate considering all of the available facts of the case.

3.  The applicant's contentions and supporting documents have been noted by the Board; however, they are not sufficiently mitigating to warrant relief when compared to the nature of his misconduct while serving as a senior noncommissioned officer.

4.  His contention that he was not afforded rehabilitation has been noted and found to lack merit.  While his ADAPCP rehabilitation was not used as part of his discharge proceedings, the applicant had the support of his chain of command when he committed his first offense and his chain of command not only enrolled him in a treatment program (ADAPCP), it also appears that they also kept his 


punishment at the lowest level.  However, the applicant betrayed the confidence placed in him as a senior noncommissioned officer through his subsequent misconduct and failure to complete his rehabilitation.  Therefore, his assertion that he was not afforded treatment appears to be without merit.

5.  The applicant's contention that limited-use evidence was used in his discharge proceedings has been noted and also found to lack merit.  While his discharge proceedings initially contained limited-use evidence involving his cocaine use, the proceedings were re-done and the applicant was again allowed to consult with counsel and re-submit his conditional waiver well before the recommendation for discharge was forwarded to the approval authority at Fort Bragg for action.  Accordingly, there were no violations of any of his rights.

6.  Given the nature of his misconduct and his rank at the time, his service simply did not rise to the level of a fully honorable discharge and his post-service conduct in itself is not sufficiently mitigating to warrant an upgrade.

7.  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)                                         AR20100007473



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)