IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100024078 


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 that his general discharge be upgraded to honorable.

2.  The applicant states, in effect, he was told upon his discharge that he could request that his discharge be upgraded.

3.  The applicant provides no additional evidence.

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 enlisted in the Regular Army on 12 November 1992.  He was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).

3.  He self referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 8 September 1993.

4.  His record reveals a disciplinary history that includes the following:

* failure to return a rental car
* absent without leave (AWOL) on 22 September 1993 and he
returned to duty incapacitated and incoherent
* He admitted to drug use and the commander directed a urinalysis 
on 23 September 1993
* he was counseled for missing an ADAPCP appointment and being AWOL,
his unsanitary living conditions, poor duty performance, and for testing positive for cocaine

5.  On 12 January 1994, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of paragraph, 14-12c, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for commission of a serious offense, due to his positive urinalysis for cocaine with a general discharge.  The applicant acknowledged receipt of the notification on the same date.

6.  On 12 January 1994, he consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board and he declined to submit statements in his own behalf.

7.  On an unknown date, the separation authority approved the discharge action, directed that the applicant not be transferred to the Individual Ready Reserves, and that he be issued a general discharge.

8.  On 25 February 1994, he was discharged under the provisions of paragraph 14-12c, Army Regulation 635-200, due to misconduct, with a general discharge.  The DD Form 214 he was issued at the time confirms he held the rank/grade of private (PV1)/E-1 and he had completed a total of 1 year, 3 months, and 14 days of active military service.  

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.  

10.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.  A discharge under other than honorable conditions is 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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his general discharge be upgraded to honorable.

2.  The available evidence shows he was issued a general discharge due to misconduct.  His record shows he violated the Army's established drug abuse policy and possessed or used illegal drugs which compromised the trust and confidence placed in him as a Soldier.  

3.  His record also shows a history of indiscipline which included being AWOL, poor performance, failure to maintain sanitary living conditions, and failure to return a rental car.  Having considered all the available evidence, his service does not warrant an honorable discharge.

4.  In view of the foregoing, his request should be denied.



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)                                         AR20100024078



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ABCMR Record of Proceedings (cont)                                         AR20100024078



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