IN THE CASE OF:	   

		BOARD DATE:	  20 October 2011

		DOCKET NUMBER:  AR20110008447 


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 under other than honorable conditions discharge.

2.  He states that he served honorably on two prior enlistment periods from 1977 to 1987 and was awarded the Bronze Star Medal.  He has never had any other negative incidents since his release from active duty.  He was never afforded any other option in consideration of his prior service.

3.  He provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 he enlisted in the Regular Army on 5 July 1977.  He completed training and was awarded military occupational specialty 18E (Special Operations Communications).  He served in Germany from 31 October 1977 through 25 July 1980.  

3.  He reenlisted on 5 July 1979 and 15 February 1980.  He was promoted to pay grade E-6 on 5 June 1987.  

4.  Orders Number 73-7 were issued by the U.S. Army, 1st Special Operations Command (Airborne), on 16 May 1988, reduced him from pay grade E-6 to E-1 with an effective date of 6 May 1988.

5.  All the documents containing the facts and circumstances surrounding his discharge are not present in the available records.  However, his records contain a DD Form 214 which shows he was discharged in pay grade E-1 on 18 June 1988 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct – drug abuse.  His service was characterized as under other than honorable conditions.  He was credited with completing 10 years, 10 months, and 14 days of net active service and no time lost.

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

7.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.

8.  Paragraph 14-12c of the regulation also provided for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs.  It provided that individuals identified as first time drug abusers, grades E-5 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could 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 was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge were merited by the Soldier's overall record.

9.  Army Regulation 635-200, paragraph 3-7a, further stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

10.  Army Regulation 635-200, paragraph 3-7b, also stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered; however, they do not support a change to his under other than honorable conditions discharge.

2.  His record is void of the facts and circumstances which led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 18 June 1988, under the provisions of paragraph 14-12c of Army Regulation 
635-200, for misconduct-drug abuse.  

3.  At the time of his discharge, the issuance of a discharge under other than honorable conditions was normally considered appropriate.  It appears his overall record was taken into consideration and his misconduct diminished the quality of his service below that meriting a general discharge or fully honorable discharge.

4.  There is no available evidence and he provided none to show that his discharge was unjust.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He was properly separated for misconduct for abuse of illegal drugs.

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)                                         AR20110008447



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ABCMR Record of Proceedings (cont)                                         AR20110008447


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