BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100008539 


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 discharge under other than honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that he was married and he was involved in an extramarital affair, his spouse found out and called his first sergeant.  He went into an absent without leave (AWOL) status due to personal problems.  He now places his faith and trust in God and he takes full responsibility for his actions.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 records show he enlisted in the Regular Army (RA) on 19 June 1990 and held military occupational specialty 63H (Track Vehicle Repairer).  He served through multiple reenlistments or extensions and attained the rank/grade of sergeant/E-5.

3.  His records also show he served in Southwest Asia from October 1990 to April 1991, Korea from July 1992 to June 1994, and Germany from July 1994 to June 1998.  He was awarded the Army Commendation Medal, Good Conduct Medal (3rd Award), Southwest Asia Service Medal with 3 bronze service stars, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon (2nd Award), Kuwait Liberation Medal (Kuwait), Kuwait Liberation Medal (Saudi Arabia), and Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars.

4.  On 3 August 1999, he participated in a unit urinalysis and his urine sample tested positive for cocaine. 

5.  On 16 August 1999, he departed his unit in an AWOL status but he was apprehended by military authorities on 30 August 1999.

6.  On 9 November 1999, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine between 29 July and 3 August 1999 and being AWOL from on or about 16 August to 30 August 1999.

7.  On 10 March 2000, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct - commission of a serious offense.  Specifically, the immediate commander cited the applicant's wrongful use of cocaine, AWOL, and nine previous incidents of failure to report.  He recommended that the applicant be issued an under other than honorable conditions discharge.

8.  On 10 March 2000, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action 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 and rights that were available to him.  He requested consideration of his case by an administrative separation board, a personal appearance before an administrative separation board, and he elected to submit a statement on his own behalf.  His statement indicated that he blamed no one but himself for the cocaine incident and asked for a second chance because he had learned his lesson. 
9.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions was issued to him.  He also acknowledged he understood as a result of the issuance of a discharge under other than honorable conditions he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

10.  On 15 March 2000, his immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct with the issuance of an under other than honorable conditions discharge.  The commander recommended that the requirements for further rehabilitation be waived and indicated that further rehabilitation would not be feasible it would not produce a quality Soldier.

11.  On 18 and 29 March 2000, his intermediate and senior commanders recommended approval of the separation action with the issuance of an under other than honorable conditions discharge.

12.  On 8 June 2000, an administrative separation board convened at Fort Stewart, GA to consider whether the applicant should be retained in the Army.  The board found the preponderance of the evidence supported that the applicant committed a serious offense and he was not desirable for further retention in the Army nor was rehabilitation deemed possible.  Accordingly, the board recommended that he be discharged from the Army with an under other than honorable conditions discharge.

13.  On 22 June 2000, the convening/separation authority approved the findings and recommendations of the administrative separation board and ordered the applicant discharged with an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  Accordingly, he was discharged on 13 July 2000.  

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 with an under other than honorable conditions discharge.  He completed a total of 10 years, 3 months, and 22 days of creditable military service and he had 
45 days of lost time.

15.  On 11 May 2001, the Army Discharge Review Board denied his petition for an upgrade of his discharge.



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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge should be upgraded.

2.  The evidence of record shows the applicant committed a serious offense in that he wrongfully used cocaine and subsequently went AWOL.  As a result, 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.  

3.  The applicant's discharge is 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 discipline, his service clearly does not merit an upgrade of his discharge.  Therefore, there is insufficient evidence to grant him the 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)                                         AR20100008539



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)