IN THE CASE OF:	  

		BOARD DATE:	    1 November 2011

		DOCKET NUMBER:  AR20110010145 


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 to a general under honorable conditions discharge.

2.  The applicant states he was going through both personal and job-related stress and he permitted drugs to become a part of his life.  This is not an excuse, just a fact.  Drugs are no longer a part of his life.

3.  The applicant provides 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.  Having had prior active service, the applicant's records show he enlisted in the Regular Army 27 January 1981 and he held military occupational specialties 27B (Land Combat Support System Test Specialist) and 43E (Parachute Rigger).  The highest rank/grade he held on active duty was staff sergeant/E-6.

3.  He was awarded the Army Service Ribbon, Parachutist Badge, Noncommissioned Officer (NCO) Professional Development Ribbon (Numeral 3), Army Good Conduct Medal (5th Award), National Defense Service Medal (2nd Award), Army Commendation Medal, German Armed Forces Marksmanship Badge, Overseas Service Ribbon (3rd Award), and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  He was assigned as an instructor at the U.S. Army Ordnance, Missile and Munitions Center and School, Redstone Arsenal, AL.

5.  On 16 March 1992, he was arrested by the Huntsville Police, Huntsville, AL, and charged with hit and run and possession of cocaine.

6.  On 12 June 1992, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana.  He was reduced to the rank/grade of sergeant/E-5.

7.  On 8 July 1992, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph14-12c, for misconduct - commission of a serious offense, specifically for abuse of illegal drugs, possession of cocaine, and hit and run.  The commander stated he was recommending he receive an under other than honorable conditions discharge.

8.  On 8 July 1992, he acknowledged receipt of the notification of his proposed discharge action.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and of the procedures and rights that were available to him.

	a.  He acknowledged he understood if the discharge request were approved, he may be discharged under other than honorable conditions.  He also 
acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

	b.  He waived consideration by an administrative separation board on the condition he receive a general under honorable conditions discharge and did not submit a statement on his own behalf.

9.  On 15 and 16 July 1992, his chain of command recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - drug abuse with the issuance of an under other than honorable conditions discharge.

10.  On 30 September 1992, the applicant again consulted with legal counsel, withdrew his conditional waiver of an administrative separation board, and unconditionally waived his right to a board.

11.  On 7 October 1992, the separation authority approved his discharge under Army Regulation 635-200, paragraph 14-12c, for misconduct - drug abuse and directed issuance of an under other than honorable conditions discharge and reduction to the rank/grade of private/E-1.  On 20 October 1992, he was discharged accordingly.

12.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - drug abuse with an under other than honorable conditions characterization of service.  He completed 17 years, 6 months, and 13 days of creditable active service with 2 days of time lost.

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  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.  

15.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received for wrongfully using marijuana and his arrest by civil authorities for possession of cocaine and hit and run.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation therefore were appropriate considering all the facts of the case.  

3.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline. The applicant was an NCO in a leadership position and his conduct brought discredit to himself, the NCO Corps, and the Army.  His record of misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to the requested relief.

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)                                         AR20110010145





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ABCMR Record of Proceedings (cont)                                         AR20110010145



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