BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100026059 


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 be upgraded from a general discharge (GD) to an honorable discharge (HD).

2.  The applicant states the discharge was not in error at the time it was issued but after 22 years of good behavior he deserves to have his discharge upgraded.

3.  The applicant provides a character letter from a supervisor and a letter of support from his wife.

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 22 March 1982, completed training, and was awarded the military occupational specialty 94B (Food Service Specialist). 

3.  On 16 December 1987, a urine sample provided by the applicant tested positive for cocaine.  A second test of the sample on 22 December 1987 confirmed the finding.

4.  On 17 February 1988, he received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for illegal drug use.  The punishment included a reduction from pay grade E-5 to pay grade E-4.  The applicant did not appeal the Article 15.

5.  On 11 March 1988, in accordance with Fort Hood Regulation 635-1 (a local regulation implementing the requirement for noncommissioned officers (NCO's) to be processed for separation based on a single positive urinalysis for illegal drug use), his command initiated separation proceedings for the illegal drug use. The applicant requested to appear before a Administrative Separation Board. 

6.  A 12 April 1988 Administrative Separation Board unanimously recommended that the applicant be discharged for misconduct and the majority of the board voted that he receive a GD. 

7.  On 18 April 1988, the discharge authority approved the Administrative Separation Board's recommendation and directed the applicant be discharged with a GD.

8.  The applicant was discharged on 3 May 1988, under the provisions of Army Regulation 635-200, chapter 14 for misconduct - drug abuse with a characterization of service of under honorable conditions.  He had 6 years, 2 months, and 11 days of creditable service.  His awards are shown as the Good Conduct Medal, Noncommissioned Officer Professional Development Ribbon with Numeral 1, Army Service Ribbon, Overseas Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle and Handgrenade Bars.

9.  The character letter describes the applicant as a devoted family man of great faith and conviction.  He is trustworthy, loyal to his work and country, with great work ethics.

10.  The applicant's wife of 27 years describes the applicant as a very honest person always willing to help others.  He has been a great father and loyal husband.  She asks that he be forgiven for the ignorance of a young man who has not been in trouble with the law and has held the same job for over 20 years.
11.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

12.  Army Regulation 635-200 (Personnel Separations), as then in effect, set forth the basic authority for the separation of enlisted personnel.  It provided the following:

	a.  an HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty;

	b.  a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge;

	c.  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; and 

	d.  abuse of illegal drugs is serious misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the discharge was not in error at the time it was issued but after 22 years of good behavior he deserves to have his discharge upgraded.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

3.  By his own admission, the applicant does not believe there was an error or injustice in his discharge, and his statements and letters of character show he has been an upstanding member of society since his discharge.  

4.  However, neither the mere passage of time nor letters submitted by the applicant contain insufficient evidence or mitigating factors to support an upgrade of the applicant’s 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)                                         AR20100026059





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ABCMR Record of Proceedings (cont)                                         AR20100026059



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