IN THE CASE OF:	  

		BOARD DATE:	    13 October 2011

		DOCKET NUMBER:  AR20110009164 


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 under honorable conditions discharge be upgraded to an honorable discharge.  

2.  He states he:

* was depressed due to the death of his grandfather and used drugs
* he wasn't given treatment
* was an E-4 being prepared to take the staff sergeant test
* has been clean almost 20 years and has his masters degree in Social Work

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.  After having prior active and inactive service, the applicant enlisted in the Regular Army on 23 November 1987 for a period of three years.  He was promoted to specialist/E-4 on 1 July 1988.

3.  On 5 October 1988, he tested positive for cocaine.

4.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongful use of cocaine on or about 12 September 1988.  

5.  On 22 December 1988, the unit commander notified him of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct - abuse of illegal drugs.  He was advised of his rights.  

6.  He acknowledged notification of separation action, consulted with legal counsel, and did not submit statements in his own behalf.  

7.  The separation authority approved the recommendation for separation under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - abuse of illegal drugs and directed issuance of a general discharge.  

8.  On 12 January 1989, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  He had completed 2 years, 1 month, and 20 days of creditable active service.

9.  His record is void of any evidence showing he requested and was denied rehabilitative treatment.

10.  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.

11.  Army Regulation 635-200 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.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant tested positive for cocaine in October 1988 and received nonjudicial punishment under Article 15 for this offense.  

2.  The applicant's contentions that he was depressed due to the death of his grandfather, used drugs, and wasn't given treatment are acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (use of cocaine) which led to his discharge.  His personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

3.  His statements regarding his post-service conduct and accomplishments are acknowledged.  However, these issues are not sufficiently mitigating to warrant relief in this case.

4.  An under other than honorable conditions discharge was normally appropriate for a Soldier discharged under chapter 14 of Army Regulation 635-200 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 the applicant has not presented sufficient evidence which warrants 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
      20110009164
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)                                         AR20110009164





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110009164



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1