BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100013751 


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 the character of his discharge be upgraded from under other than honorable conditions (UOTHC).

2.  The applicant states that he has not been involved with any illegal or negative activity since separating from the service.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge for Active Duty) and personal character references in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 16 January 1992.  

2.  He received non-judicial punishment under Article 15, Uniform Code of Military Justice for the following offenses:

   a.  7 December 1993 – on or between 1 November 1993 and
16 November 1993, wrongfully use cocaine; and 

   b.  19 December 1994  – on or about 16 November 1994 without authority 
absent (AWOL) himself from his unit until 23 November 1994. 

3.  On 22 March 1995, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 
14-12c, commission of a serious offense, with general discharge for reckless driving, resisting apprehension, various traffic offenses, and unlawful possession and transportation of a fire arm on 3 June 1991.  The applicant acknowledged receipt of the notification on the same date.

4.  On 27 March 1995, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board and he declined to submit statements in his own behalf.

5.  On 14 April 1995, the appropriate separation authority approved the discharge and directed that the applicant be reduced to the lowest enlisted grade and issued a general discharge certificate.

6.  On 5 May 1995, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct, with an under other than honorable conditions discharge.  The DD Form 214 he was issued at the time confirms he held the rank/grade private (PV1/E-1) and he had completed a total of 3 years, 3 months, and 9 days of active military service.  

7.  Item 13 (Decorations, Medals. Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the National Defense Service Medal, Army Service Ribbon, and Marksman Marksmanship Qualification Badge with Rifle Bar.

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

9.  The applicant submitted three third-party statements attesting to his character.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

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.

12.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  It is commendable that the applicant has not engaged in any illegal activity or drug use since his discharge and has developed a reputation for being a hard worker.  However his post service conduct alone is insufficient evidence to support an upgrade to his discharge.  

2.  The evidence of record shows that the applicant was discharged with an under other than honorable conditions discharge by reason of misconduct.  The applicant's record shows that he violated the Army's established drug abuse policy and possessed or used illegal drugs which compromised the trust and confidence placed in him as a Soldier.  The applicant had a duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant risked his military career.  

3.  His record also shows he was reduced to PV1/E-1 as a result of his Article 15 for being AWOL.  Therefore, his service does not warrant an upgrade of his discharge to a general or an honorable 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)                                         AR20100013751



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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