IN THE CASE OF:	  

		BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100022529 


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 his discharge characterized as under other than honorable conditions be upgraded to honorable.  

2.  He states his records will show he was generally a good service member.  He adds that prior to his discharge he applied for a compassionate reassignment, but was denied.  He maintains his personal problems, poor decision-making, mental illness, and immaturity led to his abuse of marijuana and alcohol.  He opines his addiction resulted in his other than honorable discharge.  He offers he understands the seriousness of his mistakes and has taken steps to change his life.  He says he has completed a substance abuse program, completed a Crisis Stabilization Unit program for stabilization of medications, and he is currently being treated for his major depressive disorder. 

3.  He provides the following:

* Self-authored statement
* Certificate of Completion, dated 9 January 2009
* Six supporting statements
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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's record shows he enlisted in the Regular Army on 
15 September 1978.  He reenlisted on two separate occasions and served two tours in Germany:  9 January 1979 to 5 August 1981 and 20 April 1985 to 
28 September 1989.  The highest rank he achieved was sergeant (SGT)/E5.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for the following offenses:

* failure to go at the time prescribed to his appointed place of duty
* reporting to work with a blood alcohol test level above 0.5 mg/ml
* operating a vehicle while drunk and wrongfully operating a vehicle with revoked operator's license
* wrongfully use of marijuana 

4.  There is no evidence in the available records that shows he applied for a 7compassionate reassignment and was denied.

5.  On 8 June 1989, the unit commander notified the applicant of his intent to recommend that he be separated from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b, misconduct - a pattern of misconduct.

6.  On 10 June 1989, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by an administrative separation board contingent upon him receiving a characterization of service description of no less than under honorable conditions (general).  He elected not to submit statements on his behalf.  He requested to consult with and be represented by counsel.  

7.  He acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued.  He further acknowledged that if he received a discharge certificate/character of service which was less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge. However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  He also understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

8.  On 28 June 1989, he underwent a mental status evaluation and he was determined to be mentally cleared for separation.

9.  The applicant's request to waive an administrative separation board contingent upon him receiving a characterization of service description as under honorable conditions (general) was denied.  He was recommended to be discharged with a character of service listed as under other than honorable conditions.  On 15 July 1989, he elected to waive his rights to an administrative separation board. 

10.  On 15 August 1989, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14.  He directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.

11.  Item 25 (Separation Authority) of his DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c on 
29 September 1989.  Item 26 (Separation Code) shows he was assigned a code of "JKK" and item 28 (Narrative Reason for Separation) lists misconduct/abuse of illegal drugs.  He was credited with completing 11 years and 15 days of active duty service.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the following:

* Army Service Ribbon
* Army Good Conduct Medal (3rd Award)
* Overseas Service Ribbon (Numeral 2)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

12.  There is no indication he applied to the ADRB for an upgrade of his discharge within the 15-year statute of limitations of that board.

13.  In support of his application he provided a certificate that shows he completed a 90-day comprehensive residential substance abuse program in 2009.  A letter from the Lighthouse of Tallapoosa County confirmed he left that facility due to financial reasons.  A statement from the University Orthopedic and Spine Center confirmed he was a patient from 10 December 2009 until present.  Additionally, supporting statements from health care providers at the Indian Rivers Mental Health Center confirmed he received treatment for mental illness at their 14-day inpatient Crisis Stabilization Unit program and is a resident at the center in the Pinefield Step-Up Residential Program.  He is also receiving services for major depressive disorder. 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14-12 establishes policy and prescribes procedures for separating members for acts or patterns of misconduct.  Paragraph 14-12b states a pattern of misconduct consists of:  (1) Discreditable involvement with civil or military authorities and (2) Conduct prejudicial to good order and discipline.  Paragraph 14-12c states that specific categories of commission of a serious military or civil offense include abuse of illegal drugs.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Additionally, paragraph 14-3 states that an under other than honorable conditions discharge is normally appropriate for a member who is discharged for acts and patterns of misconduct.

15.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  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.

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states, in pertinent part, that the SPD code JKM is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b, patterns of misconduct. 





DISCUSSION AND CONCLUSIONS:

1.  The applicant's argument that he was generally a good Soldier, but his "situation" led to his abuse of marijuana and alcohol and subsequently to his discharge was considered.  However, there is no evidence in the available records to show he applied for and was denied a compassionate reassignment.  Likewise, there is also no evidence to show he sought counseling for his problems that caused him to abuse drugs and alcohol.  Evidence of record shows he was mentally cleared for separation by a competent medical authority.

2.  Additionally, the fact that he has completed a 90-day comprehensive residential substance abuse program and is receiving care from a mental health center is commendable.  However, good post-service conduct alone is not a basis for upgrading his discharge.

3.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.  

4.  His entire record of service was considered.  There is no record or documentary evidence of acts of valor or service that would warrant special recognition.

5.  His record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable or either a general discharge.

6.  However, the applicant's DD Form 214 does contain an administrative error.  He was separated for pattern of misconduct, but is DD Form 214 shows he was separated for misconduct - abuse of illegal drugs.  His DD Form 214 should be corrected to show the correct reason and authority for his separation.

7.  Evidence shows the applicant’s records contain administrative errors which do not require action by the Board.  Therefore, administrative correction of his records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined administrative errors in the records of the individual concerned should be corrected.  Therefore, the Board requests that the ARBA CMD administratively correct the records of the individual concerned by amending his DD Form 214 to:

* delete the entry of Paragraph 14-12c in item 25 and replace it with Paragraph 14-12b
* delete the entry of JKK in item 26 and replace it with JKM
* delete the entry of Misconduct/Abuse of illegal drugs in Item 28 and replace it with Patterns of Misconduct



      __________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)                                         AR20100022529





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ABCMR Record of Proceedings (cont)                                         AR20100022529



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