IN THE CASE OF:
BOARD DATE: 23 December 2010
DOCKET NUMBER: AR20100014321
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 upgrade of his under other than honorable conditions discharge to an honorable discharge.
2. The applicant states he had an outstanding career with two previous honorable discharges. He was focused on his career making E-5 in 2 years and E-6 in 5 years. He never had a problem with drugs or alcohol but being young and not knowing their addictive power he made the mistake of using marijuana at a party. He has been clean and sober for the last 14 months and has been working at a veterans hospital for 8 months and they would like to hire him as a permanent employee.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), 2 letters of support, 6 drug and alcohol program certificates, and 23 pages from his service personnel record.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 25 November 1977 for a period of 3 years. He had two periods of reenlistment; 28 May 1980 for 3 years and
1 April 1983 for 4 years.
3. The applicant served in Korea from 21 March 1978 through 22 March 1979 and from 25 August 1980 through 26 June 1981.
4. His promotions and reductions are as follows:
private one
771125
sergeant
830920
private two
780125
specialist four
850214
private first class
781125
specialist four
850216
specialist four
790627
private two
850226
sergeant
800626
private one
850404
staff sergeant
830223
5. The applicant received 14 negative formal counselings between 1 September 1983 and 20 February 1985. The majority of these counselings were for failing to go at the time prescribed to his appointed place of duty or being absent from his appointed place of duty on a total of 23 separate occasions. The last counseling was for being absent from 8 mandatory formations over a span of just 2 days.
6. The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, as follows:
* 17 August 1983 for failing to go at the time prescribed to his appointed place of duty on two occasions
* 20 September 1983 for failing to go at the time prescribed to his appointed place of duty
* 14 February 1985 for wrongfully using marijuana and being absent from his place of duty for 11 hours
* 26 February 1985 for being absent without leave (AWOL) for two days
7. On 24 July 1984, a urine sample provided by the applicant tested positive for the active ingredient in marijuana.
8. On 25 January 1985, the applicant was notified of his command's intent to initiate separation procedures under Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for repeated misconduct and the positive urinalysis.
9. On 26 February 1985, after consulting with counsel, the applicant acknowledged the proposed separation and initially requested a hearing before a board of officers. He subsequently withdrew his request for a board of officers and submitted a statement in his own behalf. He basically gave a history of his prior good service and requested that he receive a general discharge.
10. The separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct, with an under other than honorable conditions discharge, waived further rehabilitative efforts, and directed the applicant be reduced to the lowest enlisted pay grade.
11. The applicant was accordingly discharged on 10 April 1985 with 7 years,
4 months, and 14 days of total active service with two days of time lost.
12. On 6 April 1988, the Army Discharge Review Board denied the applicant's request for an upgrade of his under other than honorable conditions discharge and narrative reason for separation.
13. The applicant entered a VA drug and alcohol rehabilitation program in February 2009. He provides a letter attesting to his commitment to the program and self-improvement.
14. He also entered a Salvation Army Recovery Program in March 2009 and has received certificates showing his successful progression through the 1-year point.
15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides 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 may also be processed after a first drug offense and must be processed for separation after a second offense. The issuance of an under other than honorable conditions discharge is normally considered appropriate.
16. Army Regulation 635-200, paragraph 3-7a, states 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 members 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.
17. Army Regulation 635-200, paragraph 3-7b, states 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's first two enlistments were fully honorable with no indication of any major disciplinary or negative entries to mar his service.
2. However, starting shortly after his last reenlistment and while he was serving as a noncommissioned officer, his character of service deteriorated significantly as documented by the number of negative counselings and NJP's, culminating with his illegal drug use.
3. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the offence for which he requested discharge and is appropriate for the applicant's military service during his third enlistment period.
4. Further, employability is not a valid basis for changing the characterization of his discharge.
5. In view of the foregoing, there is no basis for granting the applicant's 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) AR20100014321
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ABCMR Record of Proceedings (cont) AR20100014321
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