IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110005072 


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 that his discharge be upgraded to honorable and that the narrative reason for his separation be changed.  He is also requesting to be provided records of achievement awards and medical examinations performed on 23 May 1990. 

2.  The applicant states the one time use of drugs is not willful misconduct under Title 38, Code of Federal Regulations (CFR), Section 3.301.  He contends that willful misconduct, due to one-time use of drugs, cannot be the reason for his discharge.  He was not given the opportunity to be rehabilitated therefore, he was separated illegally.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not provide additional evidence or argument.

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 is requesting to be provided records of achievement awards and medical examinations performed on 23 May 1990; however, such action is not within the purview of the ABCMR.  In order to obtain his military records, he should submit a Standard Form 180 (Request Pertaining to Military Records) to the National Personnel Records Center (Military Personnel Records), 9700 Page Avenue, St. Louis, MO 63132-5100.  This portion of his request will not be discussed further in this Record of Proceedings.

3.  The applicant enlisted in the Regular Army on 16 March 1988 and was awarded military occupational specialty 31N (Tactical Circuit Controller) upon completion of initial entry training.  He was promoted to the rank of specialist/E-4 on 1 August 1989.

4.  In a letter dated 2 December 1989 and addressed to the applicant's commander, a commercial firm informed the commander that the applicant was indebted to that firm in the amount of $202.75.  The commander was also informed that repeated notices and appeals for payment had been ignored by the applicant.

5.  A DA Form 4856 (General Counseling Form), dated 12 April 1990, indicates the applicant was placed in confinement on 8 April 1990 in the city of Los Angeles because of a drug-related issue.  

6.  He accepted nonjudicial punishment on 23 April 1990 for wrongful use of cocaine.

7.  On 3 May 1990, he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, with a general, under honorable conditions discharge.  The specific reasons for the proposed separation were the wrongful use of cocaine and failure to pay just debts.

8.  On the same date, he consulted with legal counsel and acknowledged receipt of the proposed separation action.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, he elected to submit a statement in his own behalf; however, no statements were located in his Official Military Personnel File pertaining to his separation action.

9.  On 11 May 1990, the proper authority approved the separation action and directed the issuance of a general discharge.  On 23 May 1990, the applicant was discharged accordingly.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

11.  Army Regulation 635-200 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.

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.  Title 38, CFR, pertains to pensions, bonuses, and veteran's relief.  Section 3.301 of Title 38 pertains to line of duty and misconduct regarding service connected compensation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because the one time use of drugs is not willful misconduct under Title 38, CFR, section 3.301 has been carefully considered.  Section 3.301 of Title 38 pertains to line of duty and misconduct regarding service connected compensation and does not pertain to discharges based on illegal drug usage.  Therefore, his contention is invalid and does not merit granting the requested relief.

2.  The evidence of record confirms his separation processing was accomplished in compliance with applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  His disciplinary history includes his acceptance of nonjudicial punishment for wrongful use of cocaine.  His use of illegal drugs clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, his discharge accurately reflects the overall quality of his service and there is an insufficient evidentiary basis to support granting the requested relief.

4.  Based on the above, 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)                                         AR20110005072





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ABCMR Record of Proceedings (cont)                                         AR20110005072



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