IN THE CASE OF:	  

		BOARD DATE:	  30 June 2011

		DOCKET NUMBER:  AR20100029989 


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 the character of his discharge to honorable.

2.  He essentially states:

* without an honorable discharge he cannot get medical treatment 
* high blood pressure is listed in his military medical records
* he needs a copy of his medical records

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a self-authored statement
* two personal or character references

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 8 June 1977.  

3.  He received nonjudicial punishment under Article 15, UCMJ on 20 May 1987 for wrongful use of cocaine between 8 March and 7 April 1987, which was detected by biochemical testing of a urine sample that he submitted on 7 April 1985.  His punishment included reduction to sergeant/E-5 (suspended for 2 months), a forfeiture of $621.00 pay for 2 months, and 30 days of extra duty. 

4.  On 30 December 1987, he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Enlisted Separations), paragraph 14-12c, for misconduct – abuse of illegal drugs.

5.  On 5 January 1988, he acknowledged receipt of the proposed separation action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and of 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 requesting that his case be considered by an administrative separation board.  He did not submit a statement in his own behalf.

6.  On 12 January 1988, his company commander recommended that he be discharged with a general, under honorable conditions discharge for a serious offense, misconduct (illegal use of drugs) under the provisions of paragraph 
14-12(c), Army Regulation 635-200.  The commander also recommended that rehabilitative requirements be waived.

7.  On 11 February and 26 February 1988, his intermediate commanders recommended approval of the discharge action, respectively.

8.  On 8 August 1988, he appeared before an administrative board which reviewed his case and found that the evidence presented confirmed that he did use cocaine, an illegal drug.  Further, the board found that there was more than sufficient cause to separate him from the U.S. Army.  The board recommended that he be issued an under other than honorable discharge.

9.  On 8 September 1988, the separation authority approved the applicant’s discharge under the provisions of chapter 14-12c, Army Regulation 635-200 and directed that he be reduced to the rank/pay grade of private/E-1 and issued an Under Other than Honorable Conditions Discharge Certificate.

10.  On 4 October 1988, he was discharged.  The DD Form 214 he was issued contains the following entries:

* item 4a (Grade, Rate, or Rank) - private
* item 12c (Net Active Service this Period) - 11 years, 3 months, and 26 days
* item 12d (Total Prior Active Service) - 2 years, 9 months, and 19 days
* item 23 (Type of Separation) discharge
* item 24 (Character of Service) - under other than honorable conditions
* item 25 (Separation Authority) - Army Regulation 635-200, paragraph 14-12c
* item 28 (Narrative Reason for Separation) - misconduct - abuse of illegal drugs
* item 29 (Dates of Time Lost During this Period) - 4 January 1981

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

12.  He submitted a copy of an employee physical examination record from the Health Care, Incorporated, dated 14 March 2000, which show the results of his physical.

13.  He submitted seven pages of prescriptions he was issued from 30 May to 29 October 2008. 

14.  References:
   
   a.  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, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  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 considered appropriate.

   b.  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.

   c.  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 was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – abuse of illegal drugs with an under other than honorable conditions discharge.  

2.  The applicant's record shows he violated the Army's established drug abuse policy by possessing and using illegal drugs which compromised the trust and confidence placed in him as a noncommissioned officer.  The applicant had a duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant risked his military career.  

3.  Therefore, his service does not warrant an upgrade of his discharge to a general or an honorable discharge.

4.  He can submit a Standard Form 180 (Request Pertaining Military Records) or a letter to the National Personnel Records Center, 1 Archives Drive, St. Louis, MO 63138, to request a copy of his medical records.  

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 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)                                         AR20100029989



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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