IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110005582 


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 general discharge under honorable conditions to honorable.

2.  He states he/his:

* served his country honorably for over 2 years
* current discharge status is based on incidents which occurred in the last 
2 months of his active duty service
* had not been in any trouble up until that time
* general discharge does not represent his honorable service to his country
* became involved with drugs, got into trouble, and now he is in recovery  

3.  He provides no additional documents.  

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 23 November 1990 for a period of 3 years and 17 weeks.  

3.  On 21 September 1992, he tested positive for cocaine.  

4.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using cocaine between 25 August and 3 September 1992.  

5.  His unit commander notified him of the proposed recommendation to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of misconduct – commission of a serious offense for testing positive for cocaine.  He was advised of his rights.  He acknowledged notification of the separation action, consulted with legal counsel, and did not submit statements in his own behalf.

6.  On 15 December 1992, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - commission of a serious offense and directed the issuance of a General Discharge Certificate.

7.  On 8 January 1993, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  He had completed 2 years, 1 month, and 16 days of creditable active service.  

8.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  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, and convictions by civil authorities.  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 appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.
  
10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he served his honorably over 2 years and his general discharge is based on incidents which occurred during the last 2 months of his period of active service which is not representative of his honorable service to his country.  However, his service record shows he tested positive for cocaine and he received an Article 15 for this offense.  Considering the seriousness of the applicant's offense, it appears that his service was appropriately characterized.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under chapter 14 for misconduct.  It appears the separation authority determined that the applicant's overall record of service did not meet the standards of acceptable conduct and performance of duty to warrant a fully honorable discharge and appropriately characterized his service as general under honorable conditions.

4.  The applicant's post-service conduct is commendable.  However, his post-service conduct is not sufficiently mitigating to warrant relief in this case.

5.  He has not presented sufficient evidence to warrant changing his general discharge to a fully honorable discharge.

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)                                         AR20110005582



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ABCMR Record of Proceedings (cont)                                         AR20110005582



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