BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100009624 


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 discharge be upgraded to a general discharge.

2.  The applicant states he was never given an opportunity for rehabilitation.  He indicates that one bad urinalysis ended his career.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 7 September 1989.

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 personnel records show he enlisted in the Regular Army on 28 September 1988 for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).  On 26 January 1989, he was assigned to Company A, 588th Engineer Battalion, at Fort Polk, LA.

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on:

* 15 May 1989 for possessing a metal and wooden pipe designed for ingesting marijuana into the human body and wrongful possession of some amount of marijuana
* 19 July 1989 for wrongful use of cocaine

4.  He was reduced to private/pay grade E-1 on 19 May 1989 as a result of his NJP on 15 May 1989.

5.  On 20 July 1989, the applicant received a mental status evaluation.  The examiner determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings.  The examiner stated there was no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military medical channels.  The applicant was psychiatrically cleared for administrative action.

6.  On 9 August 1989, the applicant's commander notified him that action was being initiated to separate him under the provisions of paragraph 14-12c of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) for misconduct for abuse of illegal drugs.  The commander stated the reason for his proposed action was that he received NJP for possession of marijuana and drug paraphernalia on 15 May 1989, had a positive urinalysis for cocaine on 5 July 1989, and he received NJP for use of cocaine on 18 July 1989.  The commander advised the applicant of his right to:

* consult with counsel
* to obtain copies of documents that would be sent to the separation authority supporting the proposed separation action
* request a hearing before an administrative separation board
* submit statements in his own behalf 
* be represented by counsel
* waive any of these rights and to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge

7.  On 10 August 1989, the applicant submitted a statement acknowledging he had been advised by counsel of the basis for the contemplated separation action for abuse of illegal drugs.  The applicant did not submit statements in his own behalf.  He requested a personal appearance before an administrative separation board and he requested representation by counsel.  The applicant acknowledged that as a result 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 that he could expect to encounter substantial prejudice in civilian life.

8.  On 11 August 1989, the applicant's commander recommended that he be separated from the U.S. Army prior to the expiration of his term of service due to misconduct for drug abuse under the provisions of chapter 14 of Army Regulation 635-200.  The commander stated the specific basis for this recommendation was his positive urinalysis for cocaine and his acceptance of NJP on two occasions for drug-related offenses.  He requested that rehabilitative requirements be waived in this case.

9.  On 16 August 1989 after consulting with his counsel, the applicant waived his request for his case to be considered by an administrative separation board.

10.  On 30 August 1989, the appropriate authority approved the recommendation for the applicant's discharge, waived the requirement for a rehabilitative transfer, and directed he receive an under other than honorable conditions discharge.

11.  On 7 September 1989, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct for drug abuse. 
He had completed 11 months and 10 days of active service that was characterized as under other than honorable conditions.

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

13.  References:

	a.  Army Regulation 635-200, in effect at the time, specified that if a Soldier was being considered for an administrative discharge wherein the award of an under other than honorable conditions discharge was contemplated or if the individual had more than 6 years of service at the time the discharge action was initiated, the individual could request a hearing by a board of officers.  However, if a general or honorable discharge was to be awarded and the individual had less than 6 years of service at the time the discharge action was initiated, the Soldier did not have the right to appear before a board of officers.  In all cases, the individual had the right to consult with military or civilian counsel of his choice and any matters to be considered by the separation authority could be submitted in writing at the time he was officially notified of the recommended separation action.  A reasonable period of time was allowed to make such consultations with counsel and to submit any matters to be considered.

	b.  Paragraph 14-12c of Army Regulation 635-200, in effect at the time, dealt with separation for various types of misconduct, which included drug abuse, and provided 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 could 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 was normally considered appropriate.

	c.  Army Regulation 635-200 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 to a general discharge.

2.  Army Regulation 635-200, in effect at the time, required that those personnel below pay grade E-5 be processed for separation after a second drug offense.  The applicant was in pay grade E-1; therefore, his processing for separation was mandatory.  Although he had the right to appear before an administrative separation board, he waived this requirement after consulting with his counsel.

3.  The applicant was not processed for separation after his first drug offense.  His command clearly decided he was worth retaining in the service.  However, he then committed a second drug offense by using cocaine.  He committed two drug offenses in a 3-month time frame.  He completed a little over 9 months of service in the Army at the time of his second offense.  He clearly should have been aware of the Army's drug policy by this point in his enlistment.  This clearly showed his service to be unsatisfactory.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

5.  In view of the above, there is insufficient basis to upgrade the applicant's under other than honorable conditions 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)                                         AR20100009624



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)