IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100008377 


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 upgrade of his discharge.

2.  The applicant states he entered the military for a career and to convince his mother he could make mature decisions.  He purchased a car and spent his leave time with his mother.  He was then ordered to Fort Richardson, Alaska.  Two weeks later, his mother was killed while driving his car.  He was devastated and his maturity went out the window.  Her death resulted in irrational thinking and countless mistakes which led to the discharge.  He is now married and has two children.  He has learned from life's lessons and continues to learn.  A general discharge would allow him to find better employment and make a better future.

3.  The applicant provides a copy the report of the 28 June 1989 accident in which his mother was killed.

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, in pay grade E-2, on 11 August 1987.  He completed training as a materiel handling and storage specialist and was then stationed at Fort Campbell, Kentucky where he was advanced to pay grade E-3, on 1 June 1988 and to E-4, on 1 February 1989.

3.  On 5 May 1989 he was enroute for duty in Alaska and he reported to Fort Richardson on 22 June 1989.

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on 20 November 1989 for using cocaine and was reduced to pay grade E-3.  

5.  A 21 March 1990 mental status evaluation found the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

6.  On 19 April 1990 he received another NJP for again using cocaine and was reduced to pay grade E-1.

7.  At a 10 May 1990 summary court-martial, he pled guilty to using marijuana.

8.  The company commander recommended separation for misconduct by use of illegal drugs.  

9.  On 30 May 1990, the applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

   a.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him.  He was also advised that as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.
   b.  The applicant acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, an act of consideration by either board did not imply that his discharge would be upgraded.

	c.  He conditionally waived consideration of his case by a board of officers and also waived personal appearance before a board of officers contingent upon receiving a characterization of service of no less favorable than under honorable conditions.

10.  The applicant's conditional waiver was rejected and a separation board ordered.  The applicant again consulted with counsel and waived the board.

11.  The chain of command recommended separation with an under other than honorable conditions discharge and the separation authority approved that action.

12.  On 13 September 1990 the applicant was separated with an under other than honorable conditions discharge under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct by use of illegal drugs.  He had 3 years and 12 days of creditable service and 21 days lost time.

13.  On 28 January 1997 the ADRB considered the applicant's case.  It denied his request to upgrade the discharge, but changed the reason to simply misconduct.  

14.  The motor vehicle accident report the applicant submitted shows his mother was driving when the applicant's car left the road and overturned several times.  She was ejected and died at the hospital about an hour after the accident.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense (including drug abuse), and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is 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.  
   b.  Chapter 3, 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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record also shows that during the applicant's period of military service he repeatedly used illegal drugs.  Notwithstanding his rationale of using drugs, the evidence shows his record did not meet the standards of satisfactory conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general discharge under honorable conditions.

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

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)                                         AR20100008377





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ABCMR Record of Proceedings (cont)                                         AR20100008377



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