BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100025287 


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, in effect, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

* His discharge was improper because the captain who gave him nonjudicial punishment (NJP) did not have authority to do so
* His captain did not follow Army regulations
* A drug and alcohol rehabilitation program was required at the time; his commander denied him such rehabilitation
* His military counsel advised him to waive his rights because he felt that his immediate commander, captain (CPT) MJS, had a good idea
* He did not have a DUI (driving under the influence)
* His immediate commander, CPT MJS, knew the severity of imposing such punishment and he also knew it was wrong
* This action caused him to lose his wife, family, and home

3.  The applicant provides:

* Self-authored breakdown of NJP authority at each level of command
* Internet extract regarding NJP
* DA Form 2-1 (Personnel Qualification Record)
* DD Forms 214 (Report of Separation from Active Duty/Certificate of Release or Discharge from Active Duty)
* Report of Medical History and allied documents
* Multiple letters of appreciation/commendation
* Multiple awards and decorations, certificates, and diplomas
* Multiple character reference letters/letters of support

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.  After having served honorably from 7 December 1972 through 15 November 1974, the applicant enlisted in the Regular Army (RA) on 1 January 1976 and held military occupational specialty 11B (Infantryman).  He also executed two    6-year reenlistments, on 16 June 1978 and on 17 February 1984.

3.  He served in Germany from May 1973 to November 1974 and November 1976 to May 1977.  He also served in Korea from March 1981 to March 1982.  He was promoted to sergeant first class (SFC)/E-7, a position of authority and responsibility, on 14 May 1986.

4.  He completed multiple training courses and received multiple certificates of appreciation, recognition, and commendation.  He was also awarded the National Defense Service Medal, Noncommissioned Officer Professional Development Ribbon with Numeral 3, Overseas Service Ribbon with Numeral 1, Army Service Ribbon, Good Conduct Medal (3rd Award), Army Commendation Medal (1st Oak Leaf Cluster), Drill Sergeant Identification Badge, Expert Infantryman Badge, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  On 23 May 1985, he received an administrative letter of reprimand after an Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) determined that he:

* drank while on duty and offered alcoholic beverages to several trainees
* used inappropriate, abusive, and sexually explicit language towards trainees
* attempted to enter into a sexual relationship with trainees

6.  On 17 October 1987, he was apprehended by military police at Fort Dix, NJ, when he tried to elude the check point.  He was administered a sobriety test which he failed.  He was also administered a Breathalyzer Test which he also failed.  He was cited for drunk driving and released to his unit.

7.  On 20 October 1987, subsequent to a meeting between the applicant's commander, CPT MJS, and officials at the Fort Dix, NJ, Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), the commander opined that the applicant needed alcohol and/or drug education as a rehabilitation program.  He and the Clinical Director recommended the applicant's enrollment in Track II of ADAPCP.  On 4 November 1987, he was enrolled in ADAPCP and he was scheduled to attend sessions as part of his rehabilitation program.

8.  On 29 February 1988, he participated in a command-directed urinalysis and his urine sample tested positive for cocaine.

9.  On 26 March 1988, he accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) from his battalion commander, lieutenant colonel (LTC) KPL, for wrongfully using cocaine.  His punishment consisted of a forfeiture of pay.  He elected not to appeal.

10.  On 19 April 1988, he participated in a command-directed urinalysis and his urine sample again tested positive for cocaine.

11.  On 27 April 1988, the applicant's immediate commander, CPT MJS, notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct - commission of a serious offense - abuse of illegal drugs.  The immediate commander also notified him that he intended to recommend his service be characterized as under other than honorable conditions.  However, CPT MJS added that the intermediate commander and separation authority were not bound by his recommendation.

12.  On 19 May 1988, he again accepted NJP under the provisions of Article 15 of the UCMJ from his battalion commander, LTC KPL, for wrongfully using cocaine.  His punishment consisted of a forfeiture of pay.  He elected not to appeal.

13.  Also on 19 May 1988, the applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a separation board and a personal appearance before a separation board and elected not to submit a statement in his own behalf.  He further indicated that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

14.  On 25 May 1988, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense - abuse of illegal drugs, based on his positive cocaine test results on 19 February 1988.

15.  On 25 May 1988, his intermediate recommended approval of the applicant's separation action with an under other than honorable conditions discharge.

16.  On 20 June 1988, a Staff Judge Advocate reviewed the separation packet and found it legally sufficient.  

17.  On 20 June 1988, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense - abuse of illegal drugs and directed his service be characterized as under other than honorable conditions.  On 8 July 1988, the applicant was discharged accordingly.

18.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - abuse of illegal drugs with a character of service of under other than honorable conditions.  This form further confirms he completed 14 years, 5 months, and
17 days of total active service.  

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

20.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.

21.  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.

22.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed a serious offense by unlawfully abusing illegal drugs as evidenced by his positive urinalysis for cocaine.  Accordingly, his chain of command initiated separation action against him.  He was advised of his rights and he willingly waived his rights to an administrative separation board or appearance before such board.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

2.  With respect to his arguments:

	a.  He accepted NJP from his battalion commander, LTC KPL, on two separate occasions for using cocaine.  Contrary to his argument that his company commander, CPT MJS, was not authorized to administer the NJP, the evidence of record shows he accepted the NJP from his battalion commander, a LTC, who as a field grade officer was within his authority to impose the punishment.  CPT MJS never imposed NJP against him.

	b.  Contrary to his argument that he did not have a DUI, the available  evidence shows he was arrested by Military Police officials at Fort Dix, NJ, on 17 October 1987 for drunk driving.

   c.  Contrary to his argument that he was not afforded the opportunity to enroll in a rehabilitation program the evidence shows he was enrolled in ADAPCP on 
4 November 1987 and he was scheduled to attend sessions as part of his rehabilitation program.  However, he tested positive for cocaine less than 
4 months later.  

	d.  Contrary to his argument that CPT MJS's actions caused him to lose his wife, family, and home, the applicant's continued misconduct was a matter of choice as there is no evidence in his records and he did not provide any evidence that shows an incapacitating physical or mental condition contributed directly or substantially to the misconduct for which his separation action was initiated. 

3.  The applicant as a noncommissioned officer was assigned a special position of trust and responsibility and his daily actions had a direct impact on the community's view of the U.S. Army.  The applicant violated this special trust and confidence.   

4.  Based on the applicant’s extensive history of misconduct, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or 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)                                         AR20100025287



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ABCMR Record of Proceedings (cont)                                         AR20100025287



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