IN THE CASE OF:
BOARD DATE: 24 February 2011
DOCKET NUMBER: AR20100018749
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 an honorable discharge.
2. The applicant states it has been more than 10 years since his discharge. He was unaware that he could petition for an upgrade of his discharge.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a DD Form 293 (Application for Review of Discharge).
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 May 1979. He completed the training requirements and he was awarded military occupational specialty 16D (Hawk Missile Launcher Crewmember). He progressed normally, reenlisted twice, was promoted to sergeant, and served without incident until he provided a urine sample that tested positive for cocaine and marijuana on 15 June 1987.
3. The applicant's company commander notified him that he was recommending him for separation under the provisions of chapter 14, Army Regulation 625-200 due to misconduct-commission of a serious offense. The commander cited the applicant's positive urinalysis as the basis for the recommendation. The applicant was informed of his rights and that he could receive a general discharge.
4. The applicant consulted with counsel and waived his rights.
5. On 21 July 1987, the applicant's commander recommended that he be discharged under the provisions of chapter 14, Army Regulation 625-200 due to commission of a serious offense with a general discharge. On 5 August 1987, the approval authority approved the separation recommendation and directed that the applicant be issued a General Discharge Certificate.
6. Accordingly, on 13 August 1987, the applicant was discharged with service characterized as under honorable conditions (general). He had completed
8 years, 2 months, and 18 days of creditable active service.
7. Army Regulation 635-200 (Personnel Separations), currently in effect, 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 commission of serious offense (applicable if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial). 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.
8. 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 members 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.
9. The Table of Maximum Punishments of the Manual for Courts-Martial shows that a punitive discharge is authorized for any illegal drug offense.
DISCUSSION AND CONCLUSIONS:
1. The applicant states it has been more than 10 years since his discharge. He was unaware that he could petition for an upgrade.
2. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
3. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
4. The available evidence shows the applicant had a positive urinalysis for cocaine and marijuana. Therefore, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct renders his service unsatisfactory. Therefore, the applicant is not entitled to 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) AR20100018749
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ABCMR Record of Proceedings (cont) AR20100018749
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