IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100016279 


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.

2.  The applicant does not make any statement.

3.  The applicant provides two character reference letters.

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 service in the U.S. Air Force, the applicant's record shows he enlisted in the Regular Army on 27 October 1978 and he held military 

occupational specialty 31Q (Tactical Satellite/Microwave Systems Operator).  He also executed a 4-year reenlistment on 30 April 1982 and a 6-year reenlistment on 19 May 1988, and he attained the rank/grade of staff sergeant (SSG)/E-6.

3.  His records also show he served in Germany from February 1979 to August 1982 and September 1985 to August 1988.  He was awarded the Army Service Ribbon, Overseas Service Ribbon (2nd Award), National Defense Service Medal, Army Good Conduct Medal (3rd Award), Noncommissioned Officer Professional Development Ribbon, Army Achievement Medal, Driver and Mechanic Badge with Driver-W Bar, Army Commendation Medal, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  On 18 May 1989, he participated in a command-directed urinalysis and his urine sample tested positive for cocaine.

5.  On 29 June 1988, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine between 18 April and 18 May 1989.  His punishment consisted of a reduction to sergeant (SGT)/E-5, a suspended forfeiture of pay, and extra duty.

6.  On 20 July 1989, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12c, for misconduct - commission of a serious offense - abuse of illegal drugs. The immediate commander also notified him that he intended to recommend his service be characterized as under other than honorable conditions.

7.  On 8 August 1989, he acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation 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 he elected not to submit a statement in his own behalf.  He further indicated that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge 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.

8.  On 8 August 1989, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense - abuse of illegal drugs.

9.  On 15 and 18 August 1989, his intermediate and senior commanders recommended approval of the applicant's separation with an under other than honorable conditions discharge.

10.  On 4 October 1989, an administrative separation board was directed to convene on the 16th day following the applicant's receipt of notification of board action.

11.  On 30 October 1980, he again consulted with legal counsel and he was advised of the basis for the contemplated separation 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 subsequently waived consideration of his case by a separation board and he elected not to submit a statement in his own behalf. 

12.  On 29 November 1989, his immediate, intermediate, and senior commanders recommended approval of his separation with the issuance of an under other than honorable conditions discharge.

13.  On 7 December 1989, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense - abuse of illegal drugs and directed his service be characterized as under other than honorable conditions.  On 14 December 1989, the applicant was discharged accordingly.

14.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - abuse of illegal drugs with a character of service of under other than honorable conditions.  This form further confirms he completed 11 years, 5 months, and 16 days of total active service.

15.  On 6 August 1996, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

16.  He submits:

	a.  A statement, dated 13 May 2010, from a friend who describes the applicant as a dedicated Bible student, a devoted family man, and a loyal friend.

	b.  A statement, dated 27 March 2010, from a retired Army officer who describes the applicant as a hard-working individual, a model citizen, and a personal friend.  He has learned from his mistake and he is now more mature and focused on being a positive role model.

17.  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.

18.  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 evidence of record shows the applicant committed 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.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His 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.

2.  Based on the applicant’s record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, there is insufficient basis for granting the applicant's requested 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)                                         AR20100016279



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ABCMR Record of Proceedings (cont)                                         AR20100016279



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