IN THE CASE OF:	  

		BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20100030145 


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, that his discharge under other than honorable conditions be upgraded to an honorable or a general discharge.

2.  The applicant states:

* he has been trying since his discharge to do the right thing
* his main concern is his father who believed in the military and urged him to join the Air Force
* he wants to die with military honors
* he cannot believe he failed a urine test because he had taken at least eight tests and had not failed one
* an upgrade of his discharge should be considered for honor and country
* he has worked all of his life and now needs help when he dies
* he has done all he can to raise his children and be a good citizen
* he does not believe he got caught-up in "something like this"

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 8 July 1988.

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 completing 8 years, 2 months, and 19 days of net active service, the applicant reenlisted in the Regular Army on 23 March 1979, in pay grade E-5.  He was promoted to pay grade E-6 on 1 January 1981.

3.  On 8 January 1988, the applicant was notified that action to separate him from the Army for misconduct was being initiated.  His commander cited a positive urinalysis test for cocaine use on 5 January 1988 and a Department of the Army imposed bar to reenlistment under the Qualitative Management Program as the basis for the separation action.  He was informed of his rights and he was told that any statement he desired to submit in his behalf must be received within 7 days of the date of his notification.

4.  The applicant acknowledged receipt of the notification on 13 January 1988.  After consulting with counsel, he elected to have his case considered by an administrative separation board.

5.  The applicant received nonjudicial punishment on 4 February 1988, for using a Schedule I controlled substance (cocaine).  His punishment included a reduction in pay grade and a forfeiture of pay.

6.  A board of officers convened on 18 May 1988 to determine whether the applicant should be retained in the Army.  The board determined that he did commit the alleged misconduct of abuse of an illegal drug and that rehabilitation was not deemed possible.  The board recommended that he be discharged from the service under other than honorable conditions because of misconduct.

7.  The convening authority approved the board's recommendation for discharge on 23 June 1988.  Accordingly, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, paragraph 14-12d, for misconduct – drug abuse on 8 July 1988.

8.  The available records do not show that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  His post-service conduct and his desire to die with honors have been considered.  However, it is not a sufficient justification for upgrading his discharge.

3.  His records show he tested positive on a urinalysis for cocaine use.  His case was heard before a board of officers who determined that he did commit the offense.  The board recommended that he be discharged under other than honorable condition and the convening authority approved the board's recommendation.

4.  The applicant has not shown error or injustice in the type of discharge he received.  Therefore, his request should be denied.



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)                                         AR20100030145



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ABCMR Record of Proceedings (cont)                                         AR20100030145



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