BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100007800 


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 discharge be upgraded to general.

2.  The applicant states he was a newlywed when he and his wife moved to Italy for assignment.  They lived in a hotel for over 3 months while waiting for permanent housing and it was expensive for a private first class.  To his dismay, his new wife met a higher ranking Soldier and had an affair.  Her affair resulted in the birth of their second child.  His wife was sent back to the United States and he spent another year in Italy.  He did not have the ability to deal with such a dilemma and chose to escape from reality.  He could not forgive his wife.  He admitted to having a drug problem and received counseling, but it did no good.  He was offered the opportunity to accept a general discharge, but instead asked to remain in the Army.  The administrative discharge board decided it was better to discharge him.  He did not appeal or question the decision because he really did not care at the time.

3.  The applicant was divorced a short time after his discharge.  After a few months he was able to attend vocational school where he learned offset printing preparation and production.  He was then offered a full time position at the school where he worked for 7 years as an associate district printer and substitute instructor.  After that, he worked in the private sector until he became unemployed in 2009.  In June 2009, he enrolled in college full time with a major in computing engineering that will lead to a Microsoft Certification.  This should allow him to once again become employed.  He has made the dean's list twice and hopes to achieve Magna Cum Laude when he graduates in 2011.
4.  The applicant states that prior to going overseas he received an Army Achievement Medal and was promoted twice.  He humbly requests that the Board consider his entire period of service.  He has no criminal record and has never been in any trouble.  He has learned to accept himself for his past mistakes.

5.  The applicant provides, in support of his application, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), two college final grade sheets, eleven letters of recommendation, seven performance evaluations, two training completion certificates, a Student of the Quarter Letter with two newspaper articles, a schedule change sheet, and an individual interest profile sheet.

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.  On 14 July 1982, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 71L (Administrative Specialist).  He was subsequently assigned to Fort Campbell, Kentucky.

3.  On 21 February 1984, the applicant departed Fort Campbell for duty in Italy, where he was assigned to the 57th Postal Detachment.

4.  On 1 June 1984, the applicant was promoted to specialist four, pay grade E-4.

5.  The applicant received the following nonjudicial punishments:

	a.  On 26 September 1984, for failure to report to the company commander and first sergeant;

	b.  On 15 October 1984, for wrongful appropriation of a Government vehicle on multiple occasions, operating a vehicle while under the influence of drugs, and for wrongfully using a scheduled I controlled substance while on duty as a mail carrier; and

	c.  On 23 September 1985, for wrongfully using hashish/cannabis.

6.  On 31 October 1984, the applicant was reassigned to the 22nd Area Support Group (Provisional).

7.  During the period from October 1984 through May 1985, the applicant received rehabilitative services for his drug problem.  Based on an investigation and his self-disclosure during the investigation, the applicant admitted to using hashish/cannabis.  He was determined to be a rehabilitation failure.

8.  On 1 March 1985, the applicant was reassigned to the 221st Military Police Detachment.

9.  On 5 November 1985, the applicant's company commander notified the applicant that he intended to take action to discharge him for misconduct [abuse of illegal drugs].  

10.  On 5 November 1985, the applicant consulted with counsel concerning his rights.  He requested consideration of his case by a board of officers and to appear before that board.  He elected to make a statement in his own behalf and requested counsel. 

11.  On 9 December 1985, the applicant’s company commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct.  He cited, as reason for this recommendation, the applicant's nonjudicial punishments and his continued use of illegal drugs.

12.  On 9 December 1985, the 22nd Area Support Group Commander recommended a waiver of rehabilitative requirements because of the Soldier's past performance and record of nonjudicial punishments.  He further recommended that a board of officers be convened to consider the applicant for separation due to the use of illegal drugs and misconduct.

13.  On 31 January 1986, a board of officers convened to consider whether the applicant should be administratively discharged due to misconduct.  The applicant and his counsel were present.  The board unanimously determined that the applicant should be eliminated from the Army with an Under Other Than Honorable Conditions Discharge.
14.  On 26 February 1986, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a
DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate).

15.  Accordingly, on 25 March 1986, the applicant was discharged.  He had completed 3 years, 8 months, and 12 days of creditable active duty service.

16.  Item 9 (Awards, Decorations and Campaigns) of his DA Form 2-1 (Personnel Qualification Record - Part II) indicates that he was awarded the Army Achievement Medal, Army Service Ribbon, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  These awards are also shown on his 
DD Form 214.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include the commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

18.  Army Regulation 635-200 further provides, in pertinent part, that the misconduct is considered a commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice (UCMJ).

19.  Under the UCMJ, the maximum punishment allowed for wrongful use, possession, etc. of controlled substances is a punitive discharge and confinement for 5 years.

20.  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.  

21.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

22.  The eleven letters of support provided by the applicant state, in essence, that he has a great character and ethics.  He is friendly, patient, and goes out of his way to help others.  Furthermore, he is a hard worker who is professionally competent and always willing to help.  His performance evaluations show that he was consistently very good at his job.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his under other than honorable conditions discharge should be upgraded to general based on his post service good conduct.

2.  The record clearly shows the applicant wrongfully used and possessed controlled substances.  This clearly was the commission of a serious offense.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The applicant's record of good military service is greatly diminished by his repeated use of illegal drugs and misconduct.

6.  The applicant’s good post-service conduct is insufficient to mitigate his repeated acts of indiscipline during his military service.

7.  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)                                         AR20100007800



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)