BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100010132 


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 a general, under honorable conditions discharge. 

2.  The applicant states, in effect, his discharge should be upgraded.  

3.  The applicant provides the following documents:

* DD Form 214 (Report of Separation from Active Duty), dated 8 January 1976
* Certification of Military Service, dated 26 August 2009
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 22 April 1986

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.  Having had prior active service, the applicant's records show he reenlisted in the Regular Army for a period of 6 years on 17 February 1978 and held military occupational specialty 11C (Indirect Fire Infantryman).  He was promoted through the ranks to staff sergeant (SSG)/E-6.  

3.  The applicant’s records also show completed two overseas tours in Germany and he was awarded the Army Service Ribbon, Overseas Service Ribbon, National Defense Service Medal, Air Assault Badge, Noncommissioned Officer Professional Development Ribbon with Numeral 2, Good Conduct Medal (3rd Award), and Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  On 1 July 1985, he was apprehended by Military Police at Fort Lewis, WA, in connection with housebreaking, larceny of government property, dereliction of duty, and false swearing in regard to larceny.  He was processed and released to his unit.

5.  On 22 January 1985, he participated in a unit urinalysis and his urine sample tested positive for illegal drugs.

6.  On 28 May 1985, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using illegal drugs.  

7.  On 5 June 1985, he again participated in a unit urinalysis and his urine sample tested positive for illegal drugs.

8.  On 2 December 1985, his immediate commander notified him of his intention 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.  He recommended an under other than honorable conditions discharge. 

9.  On 2 December 1985, he acknowledged receipt of the commander's intent to separate him.  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/rights that were available to him.  He requested consideration of his case by a separation board and a personal appearance before a separation board, but declined submitting a statement on his own behalf.  

10.  He further indicated that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

11.  On 21 January 1986, his immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct – commission of a serious offense. 

12.  On 3 April 1986, an administrative separation board convened at Fort Lewis, WA, to determine whether to administratively separate the applicant from the Army for misconduct.  The board found the applicant undesirable for further retention in the Army and deemed his rehabilitation not possible.  In view of the findings, the board further recommended his discharge with an under other than honorable conditions discharge. 

13.  On 16 April 1986, the convening/separation authority approved the administrative separation board's findings and recommendations and ordered the applicant discharged from the Army under the provisions of chapter 14-12(c) of Army Regulation 635-200 for misconduct – commission of a serious offense, with an under other than honorable conditions character of service and reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 22 April 1986.

14.  The DD Form 214 he was issued at the time of his discharge shows he was discharged in accordance with chapter 14-12(c) of Army Regulation 635-200 by reason of misconduct – commission of a serious offense with a character of service as under other than honorable conditions.   He completed a total of 12 years, 1 month, and 27 days of creditable active military service.

15.  On 7 July 1988, 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 3-7b, 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 to a general, under honorable conditions discharge.

2.  The evidence of record shows the applicant committed a serious offense by unlawfully abusing illegal drugs on two separate occasions.  Accordingly, 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 was 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 indiscipline, the applicant's service clearly does not merit an upgrade to his discharge.  Therefore, he is not entitled to 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)                                         AR20100010132



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ABCMR Record of Proceedings (cont)                                         AR20100010132



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