IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100008135 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.  

2.  He states his discharge stigmatizes him for any and all opportunities to better himself in life.  The circumstances under which he was discharged merited the character of the discharge at the time.  He had become involved in drugs due to a severe personal problem with his marriage.  He had become depressed and self-destructive.  He makes no excuses for his behavior and offers that his behavior was totally out of character.  He believes he was typically a satisfactory or a higher Soldier and was meeting and exceeding the Army’s standards for performance and behavior.  After he learned of the problems in his marriage and ultimately turning to drugs, his life and career spiraled out of control leading ultimately to his misconduct and UOTHC discharge.  He currently holds a position in Narcotics Anonymous and has been completely drug free for over 5 years.  He also states his discharge was inequitable because it was based on one isolated incident in 41 months of service with no adverse action.  He cannot change what happened, but has taken steps to get his life back on track and so far has been successful.  The character of discharge awarded was appropriate to the circumstances, but is in no way a reflection of his service prior to the circumstances or since rehabilitation.

3.  He provides copies of the following documents:

* His DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A Substance Abuse Recovery Program Certificate of Completion
* A 2-Year Undercar Specialist Section Certificate of Completion
* An Automobile Technician Certificate of Competence

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 military records show he enlisted in the Regular Army, in pay grade E-1, on 4 April 1990, for 4 years.  He completed training and he was awarded military occupational specialty 13B (Cannon Crewmember).  He served in Germany from 1 August 1990 through 31 July 1991.  He was promoted to pay grade E-4 on 4 March 1992.

3.  On 8 June 1993, he was punished under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his place of duty on 28 May and 1 June 1993.  

4.  On 15 June 1993, he was arrested by civilian authorities for unlawful distribution of cocaine.  He was returned to military control on 21 June 1993.

5.  On 20 July 1993, he was punished under the provisions of Article 15, UCMJ, for the wrongful use of cocaine between 22 May and 22 June 1993.  

6.  On 29 July 1993, he was punished under the provisions of Article 15, UCMJ, for the wrongful use of cocaine between 6 June and 6 July 1993.  

7.  A Report of Mental Status Evaluation, dated 18 August 1993, shows his behavior was found to be normal.  He was found to be fully alert and fully oriented, his mood or affect was unremarkable, his thinking process clear, his thought content was normal and his memory was good.  The evaluating psychologist, an Army Medical Service Corps officer, found him to be mentally responsible and considered him to have the mental capacity to understand and participate in separation proceedings.  He was cleared for any administrative action deemed appropriate.

8.  On 27 August 1993, the company commander notified him [applicant] he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separation), chapter 14, paragraph 14-12c.  He advised the applicant that he was recommending he be separated because he was late for formation, failed to report to his place of duty, was apprehended for distributing cocaine, and tested positive for the use of cocaine.  He also advised him of his rights and that he was recommending he receive a general discharge, under honorable conditions.

9.  On 30 August 1993, the applicant, after consulting with counsel, acknowledged receipt of the contemplated action to separate him for commission of a serious offense under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c.  He also acknowledged he understood he could be discharged UOTHC, could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs.  He waived his rights and elected not to submit a statement in his own behalf.

10.  On 30 August 1993, his battalion and brigade commanders recommended he be separated from the service under the provisions of Army Regulation
635-200, paragraph 14-12c, with a UOTHC discharge.  

11.  On 27 September 1993, the appropriate separation authority approved his discharge and directed the issuance of a UOTHC discharge.  

12.  On 6 October 1993, he was accordingly discharged from active duty, in pay grade E-1, under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.  His character of service was UOTHC.  He was credited with completing 3 years, 6 months, and 3 days of net active service.

13.  There is no evidence the applicant requested assistance through his chain of command for any personal problems which prevented him from completing his period of service.  

14.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  He submits copies of three completion certificates he received in 2005, 2008, and 2010, as an automobile technician.  

16.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes 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.  

17.  Paragraph 14-12c(2) of this regulation also provided for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs.  It provided that individuals identified as first time drug abusers, grades E-5 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge UOTHC was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

18.  Army Regulation 635-200, paragraph 3-7a, further provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered; however, they do not support a change to his UOTHC discharge.  While serving in the pay grade of E-4, he was twice punished under Article 15, UCMJ, for the wrongful use of cocaine and had been apprehended by civilian authorities for distributing cocaine.  Regulatory guidance in effect at the time provided for the separation of Soldiers in pay grades below E-5 after a first drug offense.  He was advised of the factual reasons for the proposed separation action and that he could be discharged with a UOTHC discharge.  

2.  The evidence shows his misconduct diminished the quality of his overall service below that meriting a fully honorable discharge or a general discharge.  He was properly separated for misconduct, commission of a serious offense.

3.  He has provided no evidence to show that his discharge was unjust.  The documents provided in support of his application were reviewed; however, they provided neither probative evidence nor a convincing argument in support of an upgrade of his discharge.  

4.  In view of the circumstances in this case, he is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise. 

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)                                         AR20100008135



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)