IN THE CASE OF:	  

		BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110009544 


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 an honorable discharge.

2.  The applicant states that he needs an upgrade of his discharge to obtain Department of Veterans Affairs benefits.

3.  The applicant provides no additional evidence.

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 10 May 1984.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was sergeant (SGT)/E-5.

3.  On 18 January 1989, the applicant participated in a unit urinalysis.  On         25 January 1989, his commander was notified the applicant’s urine sample tested positive for cocaine.

4.  As a result of the positive urinalysis, his immediate commander initiated a Bar to Reenlistment on 23 February 1989.  Section 3(3) (Soldier’s Review) of the applicant’s DA Form 4126 (Bar to Reenlistment Certificate) indicates the applicant desired to submit a statement of his own behalf; however, no statement is present in his official records.

5.  Records show the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 10 April 1989 for wrongfully using cocaine.  The applicant elected to appeal and submit additional matters in person. 

6.  On 13 April 1989, the applicant underwent a polygraph examination.  The examiner opined the applicant was truthful in his responses to relevant questions regarding his denial of cocaine use.  However, the applicant did state that during the first part of January 1989, he attended a party where he suspects people were using drugs, but he did not knowingly participate as he was drinking alcoholic beverages.

7.  As a result of the applicant’s polygraph test, his punishment under Article 15 of the UCMJ, previously administered by his commander on 10 April 1989, was set aside.

8.  On 31 May 1989, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14-12(c) by reason of misconduct-drug abuse.  

9.  On 1 June 1989, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.  The applicant elected to submit a statement on his own behalf in addition to submitting several certificates, awards, and third-party letters of support advocating that he be retained.

10.  On 1 June 1989, his immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct, commission of a serious offense (drug abuse).  However, two entries were lined through as follows:
	a.  In paragraph 1 of the recommendation memorandum, the immediate commander stated "Under the provisions of Chapter 14-12c(2), I recommend the following individual be separated from the United States Army prior to the expiration of his term of service with a General Discharge."  The immediate commander lined through the words "separated from the United States Army prior to the expiration of his term of service with a General Discharge" and hand-wrote the word "retained" and placed his initials.

	b.  In paragraph 1(p) of the recommendation memorandum, the immediate commander lined through and initialed the entry "I do not consider any other disposition is appropriate because the United States Army nor I will tolerate a Soldier's involvement with drugs."

11.  On 5 June 1989, his immediate commander recommended disapproval of the recommendation and remarked that the applicant underwent a polygraph which indicated that he was or, believes he was, telling the truth about not using cocaine.

12.  On 7 June 1989, his intermediate commander recommended the applicant's retention and opined that based on his otherwise spotless record, his insistence that he did not knowingly consume cocaine, and his sincere desire to be an outstanding Soldier, he should be retained, continue in the drug and alcohol prevention program, and undergo regular urinalysis screening.

13.  On 8 June 1989, a military attorney reviewed the separation packet and found it legally sufficient.

14.  On 24 July 1989, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct – abuse of illegal drugs – and directed he be furnished a general discharge.  Accordingly, he was discharged on 14 August 1989.  His DD Form 214 confirms he was discharged with a character of service of under honorable conditions (general) and that he had completed a total of 5 years, 3 months, and 5 days of creditable active military service.  

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

16.  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.  At the time, individuals in pay grades E-5 and above must have been processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could also have been processed after a first drug offense and must have been processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

17.  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's request that his discharge be upgraded was carefully considered; however, there is insufficient evidence to support this request.    

2.  The evidence of record shows he tested positive for cocaine during a unit urinalysis.  His commander initiated a bar to reenlistment and punished him under the provisions of Article 15 of the UCMJ.  He took a polygraph, and the results supported his contention that he had not used illegal drugs.  In accordance with regulatory guidance his chain of command initiated separation action against him but recommended his retention.  

3.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  The applicant consulted with counsel and was advised of his rights.  After a legal review determined his administrative discharge proceedings were legally sufficient, the separation authority approved his discharge by reason of misconduct - abuse of illegal drugs.

4.  Based on this record of indiscipline, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the Department of Veterans Affairs.

BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board believed that the preponderance of the evidence indicated the command had backed away from the culpability of the applicant in the drug-related charge.  Although the decision authority made the correct choice to discharge him on grounds of the good of the unit climate, the characterization of the discharge was unjustly harsh.  

2.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was discharged on       14 August 1989 with a fully honorable discharge and issuing him a new DD Form 214 and discharge certificate accordingly.



      _______ _   xxx_______   ___
               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)                                         AR20110009544



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ABCMR Record of Proceedings (cont)                                         AR20110009544



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