BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100013394 


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 an upgrade of his general discharge to a fully honorable discharge.

2.  The applicant states he has waited the time.

3.  The applicant provides 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 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 record shows he enlisted in the Regular Army on 19 June 1984 and held military occupational specialty 64C (Motor Transport Operator). The highest rank/grade he attained during his military service was private first class/E-3.

3.  His record further shows he served in Panama from 1 November 1984 to 31 October 1986.  His awards and decorations include the Army Service Ribbon, Overseas Service Ribbon, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* On 1 December 1985, for stealing from the main Post Exchange
* On 11 December 1985, for being disrespectful toward a noncommissioned officer

5.  On 29 August 1986, his immediate commander initiated a Bar to Reenlistment Certificate against him citing one prior incident of NJP.  He was provided with a copy of this bar and submitted a statement on his own behalf.  His bar was ultimately approved by the approval authority.

6.  His records contain several negative counseling statements by various member of his chain of command for infractions such as failure to repair, using a controlled substance, and multiple instances of failing to be at his appointed place of duty.

7.  On 22 January 1987, he participated in a unit urinalysis and his urine sample tested positive for cocaine, and on 27 March 1987, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using cocaine.

8.  On 13 April 1987, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct - abuse of illegal drugs.  He recommended a general discharge.

9.  On 13 April 1987, he acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and 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 waived his right to as formal hearing in his case contingent upon receiving a general under honorable conditions discharge.
10.  He further indicated 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.  He elected not to submit a statement on his own behalf.

11.  On 23 April 1987, his immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct - abuse of illegal drugs.

12.  On 23 April 1987, his intermediate commander recommended approval of the discharge with the issuance of a General Discharge Certificate.

13.  On 27 April 1987, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed he be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 5 May 1987. 

14.  His DD Form 214 confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - drug abuse with an under honorable conditions (general) character of service.  This form also confirms he completed 2 years, 10 months, and 17 days of creditable active military service.

15.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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 included frequent incidents of a discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority could direct an honorable or general discharge if such was merited by the Soldier's overall record.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant had a history of misconduct including accepting NJP on two occasions, multiple negative counseling, and a bar to reenlistment.  His misconduct culminated in the commission of a serious offense by unlawfully abusing illegal drugs as evidenced by his positive urinalysis for cocaine.  Accordingly, his chain of command initiated separation action against him.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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.

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)                                         AR20100013394



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ABCMR Record of Proceedings (cont)                                         AR20100013394



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