IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100013026 


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 general discharge be upgraded to an honorable discharge.

2.  He states he has been a member of the community in good standing since his discharge.  He has continued his education, graduated from college, and has been gainfully employed since his discharge.  He wishes to join an agency that requires an honorable discharge.  He was court-martialed because of his ex-wife's possession (and usage) and because the vehicle was in his name.  It is documented that his ex-wife was enrolled in a drug treatment center.  He has since not been affiliated with illegal contraband.

3.  He provides no additional evidence.

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 records show that he enlisted in the Regular Army in pay grade E-1 on 23 October 1983, for 3 years.  He completed training and was awarded military occupational specialty 31C (single channel radio operator).  

3.  A DA Form 2496 (Disposition Form), dated 3 November 1986, shows the applicant was notified by his company commander of the intent to disqualify him from award of the Good Conduct Medal for the period 1 October 1983 to 2 October 1986 for abuse of illegal drugs on 24 September 1986.  On the same day, the applicant acknowledged receipt of the notification and elected not to submit a statement.

4.  All the documents containing the facts and circumstances surrounding his discharge are not present in the available records.  However, his records contained a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged in pay grade E-1 on or about 3 November 1986, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 14-12c, for misconduct for abuse of illegal drugs.  He was issued a General Discharge Certificate and was credited with 3 years and 12 days of net active service.

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

6.  Army Regulation 635-200, then in effect, 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 included 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.

7.  Paragraph 14-12c (2) of the regulation also provided for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs.  It provided that individuals identified as first time drug abusers, grades E-5 through E-9, would 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.  The separation authority could direct a general discharge if such a discharge were merited by the Soldier's overall record.
8.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he has become a member of the community in good standing, graduated from college, and gainfully employed since his discharge has been noted.  However, based on the available evidence, there is insufficient evidence for the upgrade of his discharge.  He has submitted neither probative evidence nor a convincing argument that he warrants an upgrade of his discharge to fully honorable. 

2.  The evidence of record shows in November 1986 he was advised of his company commander's intent to disqualify him from award of the Good Conduct Medal for abuse of illegal drugs on 24 September 1986.  He acknowledged the notification and elected not to submit a statement.  In accordance with regulatory guidance, he was discharged for misconduct for abuse of illegal drugs, with a general discharge.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge.  

3.  In the absence of evidence to the contrary, Government regularity is presumed in the discharge process and it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.

4.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100013026





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ABCMR Record of Proceedings (cont)                                         AR20100013026



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