IN THE CASE OF:
BOARD DATE: 2 September 2010
DOCKET NUMBER: AR20100009542
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 an honorable discharge.
2. The applicant states that while his character was not acceptable, he has changed and matured into a productive individual. He now realizes his actions were not beneficial to the military. He has matured and will not repeat his past actions.
3. The applicant provides no additional documents in support of this application.
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 enlisted in the Regular Army on 30 April 2004. He completed initial entry training and was awarded military occupational specialty 52D (Power-Generation Equipment Repairer).
3. On 16 March 2005, he accepted nonjudicial punishment for wrongfully using and possessing cocaine.
4. On 17 June 2005, he was notified by his unit commander of his pending separation action under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense. His unit commander based his recommendation for separation on the applicant's wrongful use and possession of cocaine for which he had received nonjudicial punishment.
5. The applicant acknowledged the intended separation action and after consulting with counsel, waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel. He also elected not to make a statement in his own behalf.
6. On 4 August 2005, the separation authority approved the separation action and directed that the applicant be issued an under other than honorable conditions characterization of service. On 16 August 2005, he was discharged accordingly.
7. The Army Discharge Review Board denied his request for an upgrade of his discharge on 27 August 2008.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of this regulation deals with the separation of enlisted individuals for various types of misconduct, which includes the commission of a serious offense that could result in a punitive discharge. An under other than honorable conditions discharge is normally considered appropriate.
9. Under the UCMJ, the maximum punishment allowed for violation of Article 112a, for use and/or possession of cocaine, is a dishonorable discharge and confinement for 5 years.
10. 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.
11. 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's contention that his discharge should be upgraded because he has changed and his action will not be repeated has been carefully considered.
2. The available evidence clearly shows the applicant was punished for possession and use of cocaine which is clearly a serious offense.
3. The evidence of record confirms his separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.
4. By violating the Army's policy not to possess or use illegal drugs, he compromised the special trust and confidence placed in him as a Soldier and knowingly risked his military career. This misconduct clearly diminished the quality of his service below that meriting a fully honorable or general discharge.
5. The applicant has failed to provide evidence demonstrating that the command's actions and/or the characterization of his service were in error or unjust.
6. 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) AR20100009542
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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