BOARD DATE:	  13 September 2011

		DOCKET NUMBER:  AR20110002106 


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 general discharge be upgraded to an honorable discharge.

2.  The applicant states he was told that because he was a sergeant, drug rehabilitation and continuation of service was not an option.  So as soon as he was discharged he enrolled in and completed a rehabilitation program and has remained drug free since that time.  In his civilian capacity since discharge, he has worked as an investigator for a city department of consumer services, driven a tractor trailer, completed a certificate course at a college, has done construction work, and is currently a general contractor/sole proprietor of a business.  

3.  He adds that he has "earnest expectations for a favorable finding in my application for an upgrade in my discharge" and that "To err is human, to forgive divine." 

4.  The applicant provides a clinical discharge summary with a discharge date of 3 November 1993; two DD Forms 214 (Certificate of Release or Discharge from Active Duty); and his birth certificate.

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’s military records show that he enlisted in the Regular Army on 16 January 1980, was awarded the military occupational specialty (MOS) of medical specialist, was promoted to pay grade E-4, and was honorably released from active duty at the expiration of his term of service on 17 December 1982.  During this period of service he accepted nonjudicial punishment (NJP) twice for possession of marijuana and missing movement.

3.  He enlisted with prior service on 7 March 1989 and was awarded the MOS of light wheel vehicle mechanic.  He was promoted to the rank of sergeant, pay grade E-5.

4.  On 27 April 1993, he accepted NJP for wrongfully using cocaine.

5.  On 2 June 1993, his commander notified him of his intent to recommend his separation due to misconduct due to his positive urinalysis for cocaine and of his rights in conjunction with that recommendation.  The applicant submitted a conditional waiver wherein he waived his rights contingent upon his receiving no less than a general discharge.

6.  The applicant's commander then forwarded his recommendation to separate the applicant which was approved by the appropriate authority.

7.  Accordingly, on 1 July 1993, the applicant was given a general discharge for misconduct, abuse of illegal drugs.

8.  The clinical discharge summary provided by the applicant shows he was admitted for drug detoxification and rehabilitation on 12 October 1993.  In that summary it was stated the applicant reported using cocaine from 1984 to 1988 and then again from 1992 to 1993.  He said that he was consuming up to $300.00 worth of cocaine a day prior to his admission.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant was a sergeant who tested positive for cocaine.  As such, he was properly processed for discharge for misconduct, abuse of illegal drugs.  The normal characterization of service for such a separation is under other than honorable conditions.

2.  The applicant was afforded leniency when the approving authority accepted his conditional waiver and gave him a general discharge.

3.  While the applicant's post-service achievements and his drug-free life are commendable, those achievements do not warrant upgrading a discharge for misconduct to fully honorable.

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)                                         AR20110002106





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110002106



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1