BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100025035 


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 general discharge to an honorable discharge.

2.  The applicant states that he was charged and incarcerated for possession but he was never convicted. 

3.  The applicant provides a copy of his 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 enlisted in the Regular Army on 18 February 1980 for a period of 4 years.  He completed the required training and he was awarded military occupational specialty 71P (Flight Operations Coordinator).  Records further show that he reenlisted on 23 December 1983.  The highest rank/grade he attained while serving on active duty was specialist (SP4)/E-4. 

3.  On 1 July 1986, nonjudicial punishment (NJP) was imposed against the applicant under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using cocaine.

4.  On 8 January 1987, the applicant (and counsel) appeared before the El Paso County District Court, State of Colorado for arraignment on charges of the unlawful use of a controlled substance.  The applicant entered a plea of "guilty."  The applicant was subsequently sentenced to:

* probation for a period of 1 year (unsupervised)
* county jail (CTJL) 20 days - condition of probation
* complete an El Paso County Drug Program
* 20 days CTJL work release
* pay court costs

5.  The applicant's records contain a U.S. Army Criminal Investigative Command (CID) Report of Investigation Number 0759-86-CID056-xxxxx-xLxB/xLxC/xLxD/
xGx, dated 23 January 1987.  The CID Report of Investigation indicated that the applicant was investigated for attempted unlawful possession of a controlled substance (cocaine).

6.  On 25 February 1987, the unit commander notified the applicant he was initiating separation action on him under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-12(c) and (d) for misconduct.  The unit commander stated the reason for his proposed actions was that the applicant was a second-time offender of illegal drugs.  He had also been convicted by civil authorities and sentenced to a period of confinement.  The unit commander advised the applicant of his rights. 

7.  On 25 February 1987, the applicant consulted with legal counsel and he was advised of the basis of the contemplated separation action, its effects and of the rights available to him.  He waived his rights to be considered by an administrative separation board, personal appearance before a board of officers, if separation was accomplished by the special court-martial convening authority.  

8.  The applicant further stated that if his discharge was accomplished by the general court-martial convening authority then he would request his rights to personal appearance before a board of officers and representation by consulting counsel.  He elected to submit a statement in his own behalf and acknowledged that he understood he could encounter substantial prejudice in civilian life if he received a general discharge.  

9.  The applicant's records contain a memorandum for record, dated 10 March 1987, which stated the applicant had failed to submit statements in his own behalf as indicated on the Receipt of Notification.

10.  On 11 March 1987, the separation packet was reviewed by the command's assistant staff judge advocate who found the applicant's separation packet legally sufficient.

11.  On 17 March 1987, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct and directed the issuance of a General Discharge Certificate.  

12.  On 24 March 1987, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense.  This form further shows the applicant completed a total of 7 years and 24 days of creditable active service with 12 days of time lost.

13.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade to his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Additionally, it provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades below E-5 may be processed after a first drug offense and must be processed for separation after a second offense.  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.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms his unit commander notified the applicant of the contemplated separation action and that he consulted with legal counsel.  It further shows that the applicant was advised of the basis for the contemplated separation action and its possible effects.

2.  The record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  The record further shows the applicant's discharge accurately reflects his overall record of undistinguished service.  

3.  The evidence of record shows the applicant received one nonjudicial punishment for using cocaine.  Evidence further shows that he pled guilty and he was found guilty by the El Paso County District Court for unlawful use of a controlled substance and sentenced accordingly.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  In view of the foregoing, there is no 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)                                         AR20100025035



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ABCMR Record of Proceedings (cont)                                         AR20100025035



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