IN THE CASE OF:	  

		BOARD DATE:	 8 March 2011

		DOCKET NUMBER:  AR20100018225 


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 correction of his military records to show he retired with 20 years of service.  He further requests to be paid based on when he should have been retired.

2.  The applicant states, "What was done to me at Pedricktown Army Reserve Post was UN called for."  He contends that he should be retired based on his completion of 20 years of service in the U.S. Army.  He did not deserve the treatment he received.  He should have started drawing retired pay as a staff sergeant (SSG)/E-6 in 1992.  He feels that he deserves his back pay and to be added to the retirement rolls of the U.S. Army.  He makes the following statements:

	a.  A captain in his chain of command would see that no matter what, the applicant would not retire.

	b.  A captain in his chain of command told him, "all Black Soldiers at the Pedricktown Army Reserve Post were historically Alcoholics.  Therefore, I should control my drinking."  He did not even know if the applicant drank.

	c.  A noncommissioned officer (NCO) told the applicant that the captain was out to get him.

	d.  He was singled out for a random drug screening but proper procedures were not followed and he was identified as being positive for using cocaine.

	e.  He was told to sign out on extended leave and later found out he was reported as being absent without leave (AWOL).

	f.   There is much more to be heard in order to understand what he is talking about.  He needs help and will write the President if he has no other choice.

3.  The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 28 April 1980 and 10 April 1992; a letter from the Army Review Boards Agency, dated 15 January 2010; and a letter from the Department of Veterans Affairs (VA), dated 2 April 2009.

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 served in the Regular Army from February 1971 to 28 April 1980.  He attained the rank/grade of SSG/E-6, and was honorably discharged due to completion of required service.

3.  On or about 24 March 1981, the applicant enlisted in the U.S. Army Reserve (USAR) and he was assigned to the 429th Engineer Battalion located in Greensburg, PA.

4.  On 19 July 1981, the applicant was assigned for duty as a USAR recruiter in an Active Guard Reserve (AGR) status with the Pittsburgh District Recruiting Command.

5.  On 16 July 1984, the applicant was reassigned as an AGR Soldier to the 354th Civil Affairs Brigade located in Latrobe, PA.

6.  On 24 July 1989, the applicant was assigned as an AGR Soldier to the 1175th U.S. Army Transportation Terminal Unit located at Pedricktown, NJ.

7.  On 19 November 1989, the applicant was given a letter of counseling from his commander, a colonel.  The letter indicated:

	a.  the colonel had discussed with the applicant's second-line supervisor his poor work performance, enrollment in the alcohol and drug abuse program, and his desire to change his enrollment status to Track II;

	b.  the applicant had told the colonel at a previous staff meeting that he did not have a drinking problem and wanted to change from Track III to Track II;

	c.  the supervisor of the alcohol and drug abuse program had established the applicant was in definite need of the Track III program; and

	d.  the applicant was to bring his wife with him to the next meeting so that she could be advised of what the unit was doing to help the applicant with his alcohol and drug abuse problem.

8.  On 10 March 1991, the applicant's commander recommended the applicant be barred from reenlistment.  The commander based his action on:

	a.  five non-sufficient fund checks to the Town Hall Tavern, totaling $750.00;

	b. a non-sufficient check to Andys Liquor Store for $43.00;

	c.  eight non-sufficient checks to Colonial Liquor Store, totaling $315.00;

	d.  three non-sufficient checks to individuals totaling $2,200.00;

	e.  counseling on 24 October 1989 for failing to meet suspense dates and poor duty performance;

	f.  arrest on 16 August 1990 for possession of cocaine; and

	g.  AWOL during the periods 31 August to 28 September 1990, 16 October to 15 November 1990, and 14 to 18 December 1990.

9.  On the same day, the applicant indicated that he had been counseled and advised of the basis for the bar to reenlistment.  He further indicated he would submit a statement in his own behalf.

10.  On 9 April 1991, the administrative officer indicated that the applicant had decided not to submit a statement in his own behalf.  The brigade commander signed and dated the bar to reenlistment on 9 April 1991; however, he did not indicate what action was being taken.

11. On 14 March 1991, the applicant's commander notified the applicant that he was initiating separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12c, for misconduct - commission of a serious offense.  The reasons for the proposed action were the applicant's wrongful possession of cocaine, AWOL, and writing and passing worthless checks.  He recommended the applicant receive an under other than honorable conditions discharge.  The applicant was advised:

* he had the right to consult with consulting counsel and/or civilian counsel at no expense to the Government within a reasonable time
* he may obtain copies of documents that will be sent to the separation authority supporting the proposed separation
* he may request a hearing before an administrative board or he may present statements instead of board proceedings
* he may request appointment of military counsel for representation or military counsel of his choice, if reasonably available; or retain civilian counsel at no expense to the Government
* he may waive his rights in writing and withdraw any such waiver at any time prior to the date the separation authority orders, directs, or approves his separation
* he may submit a conditional waiver of his right to have his case heard by an administrative separation board

12.  The available record does not contain the applicant's acknowledgement of the notification or the election of his rights.

13.  On 21 October 1991, the applicant was notified to appear before an administrative separation board to determine whether he should be separated for misconduct.  He acknowledged this notification on the same day.

14.  On 21 November 1991, the administrative separation board convened.  On 25 November 1991:

	a.  the board found that the applicant had wrongfully possessed cocaine, he was AWOL on three occasions in 1990, and he wrote and passed worthless checks;


	b.  the board recommended that the applicant be separated with a general, under honorable conditions characterization of service; and

	c.  the board further recommended that the discharge be suspended.

15.  The convening authority subsequently directed that the applicant be discharged immediately with issuance of a general discharge.

16.  On 13 March 1992, the results of the separation board were forwarded to the Total Army Personnel Command (TAPC), Alexandria, VA, for review and action.  TAPC's final action is not contained in the available record; however, on 10 April 1992, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense.  He had completed 19 years, 6 months, and 24 days of creditable active service with 98 days of time lost due to AWOL.

17.  Under the Manual for Courts-Martial, the maximum punishment allowed for the wrongful use, possession, manufacture, or introduction of cocaine is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  

19.  Army Regulation 635-200, chapter 12, establishes policy and prescribes procedures for retiring enlisted Soldiers for length of service.  It states that a Soldier who has completed 20, but less than 30, years of active Federal service (AFS) may, at the discretion of the Secretary of the Army, be retired at his or her request.  

20.  Title 10, U. S. Code, section 3914 states that, under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of service for an AFS retirement may, upon his request, be retired.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contention that he should be retired with 20 years of service because he did not deserve the treatment he received has been carefully considered.

2.  The available evidence clearly shows that an administrative separation board determined the applicant had wrongfully possessed cocaine, he was AWOL on 
three occasions in 1990, and he had written and passed worthless checks.  Even though the board had recommended suspension of the separation, the convening authority directed an immediate discharge due to the commission of a serious offense.

3.  In the absence of evidence to the contrary, it is presumed that his discharge was approved by Headquarters, Department of the Army and that his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  Retirement for an enlisted Soldier with less than 30 years of AFS is not a right but is at the discretion of the Secretary of the Army.  Even though the applicant had completed over 19 1/2 years of AFS, his misconduct, which appears to be well documented and not the result of his being "singled out," appears to be sufficient reason to deny the relief requested.  

5.  The applicant has not provided any documentary evidence showing that the facts presented in his records are in error, or that the actions taken by his command were inappropriate or unjust.

6.  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)                                         AR20100018225



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ABCMR Record of Proceedings (cont)                                         AR20100018225



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