IN THE CASE OF:
BOARD DATE: 19 August 2010
DOCKET NUMBER: AR20100009498
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 general discharge to an honorable discharge.
2. The applicant states it has been 18 years since his discharge.
3. The applicant provided 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 applicants 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 applicants 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 record shows he enlisted in the Regular Army on 30 April 1980. Records show he completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 31M (Mechanic Communication Equipment Operator). The highest rank/grade he attained while serving on active duty was sergeant (SGT)/E5.
3. On 15 October 1991, the applicant received a positive urinalysis for cocaine.
4. On 5 November 1991, nonjudicial punishment (NJP) under provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for wrongfully using cocaine sometime between 23 September 1991 and 26 September 1991.
5. On 27 November 1991, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14-12(c)(2), for misconduct - commission of a serious offense, due to his wrongful use of cocaine.
6. On 2 December 1991, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation, the possible effects of a general discharge, and the rights available to him.
7. On 5 December 1991, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 14-12(c)(2), and directed the applicant receive a general, under honorable conditions discharge. On
16 December 1991, the applicant was discharged accordingly. The DD Form 214 he was issued confirms he was discharged for misconduct - abuse of illegal drugs. He completed a total of 11 years, 7 months, and 15 days of creditable active service with 2 days of time lost.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense. The issuance of a discharge under other than honorable conditions is normally considered appropriate.
9. 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 members 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his discharge should be upgraded was carefully considered; however, there is insufficient evidence to support this request.
2. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
3. Although it has been 18 years since the applicant's discharge, time does not mitigate the fact that he participated in illegal drug use.
4. Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an honorable discharge.
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) AR20100009498
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ABCMR Record of Proceedings (cont) AR20100009498
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