IN THE CASE OF:	  

		BOARD DATE:	    16 June 2011

		DOCKET NUMBER:  AR20100029280 


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 an upgrade of his under other than honorable conditions discharge to allow his reenlistment in the military.

2.  The applicant states that apparently while drunk he ingested an illegal drug.  He adds that a few days later he was selected for a random urinalysis (taken to mean he tested positive for an illegal substance) and was reduced in grade and discharged.  He further states that this was the only time in his life that he had ever been involved with an illegal substance.  He states that his commanding officer could have referred him to rehabilitation but chose to make an example of him instead.  He asks that his files be reviewed to see what kind of Soldier he was excluding this incident.

3.  The applicant provides two DD Forms 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.  His military records show he enlisted in the Regular Army on 10 September 1987.  He completed initial entry training and was awarded the military occupational specialty of infantryman. 

3.  He was honorably released early from active duty on 12 July 1991 to further his education.  He  again enlisted in the Regular Army on 8 May 1992.  The highest grade he held was pay grade E-4.

4.  On 19 April 1993, he was charged for wrongful use of cocaine, a controlled substance.
 
5.  On 27 April 1993, he consulted with counsel and he voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  He acknowledged he was making the request of his own free will and had not been subjected to coercion with respect to his request for discharge.  He further acknowledged that by submitting his request for discharge, he was admitting to being guilty of the charges against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.

6.  He consulted with counsel and he was advised of his rights.  He acknowledged he understood that if his discharge request was approved, he might be discharged under conditions other than honorable.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of this discharge.

7.  On 14 May 1993, he submitted a statement on his behalf requesting a general discharge instead of an under other than honorable conditions discharge.  He stated that he had attended counseling and was succeeding in ridding himself of his addiction.  He indicated he had assisted the Criminal Investigation Division in an attempt to assist them in drug busts.  He stated that he was requesting his whole record be considered when considering the type of discharge he would receive rather than one isolated incident.
8.  On 27 May 1993, the separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed that he be given an under other than honorable conditions discharge.

9.  On 3 June 1993, he was discharged accordingly.  The DD Form 214 he was issued shows he completed a total of 4 years, 10 months, and 29 days of active military service.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this regulation in effect at the time provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

12.  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.

13.  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 discharge with a characterization of service 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 applicant's records show he was charged for wrongful use of cocaine, a controlled substance.  While he submitted a statement requesting a general discharge instead of an under other than honorable conditions discharge and indicated it was only one isolated incident, he admitted to being an addict.  As such, while he may have tested positive for wrongful use of a controlled substance only once, it appears his illegal use of cocaine was not an isolated incident.

2.  He voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  Both his characterization of service and the reason for discharge are appropriate considering the facts of the case.  Therefore, he was properly and equitably discharged.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

3.  There is no evidence that his military record was sufficiently meritorious to provide a basis for upgrading his properly-issued discharge.

4.  While it is commendable that he wants to reenlist, this is no basis for changing a properly-issued discharge.

5.  In view of the foregoing, there is no basis for granting the 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)                                         AR20100029280



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ABCMR Record of Proceedings (cont)                                         AR20100029280



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