BOARD DATE:	 10 January 2012

		DOCKET NUMBER:  AR20110012713


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states:

* his life was out of control for a long time after his departure from the service
* with the help of his spouse, he has put his life together again
* he attends counseling on a regular basis to address his issues
* he hopes the Board can find it in their hearts to upgrade his discharge so more doors can open and he can further himself and his family

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Inpatient Treatment Plan, dated 7 March 2010
* Notice of Enrollment, Commonwealth of Pennsylvania, Department of Health, Division of Nursing Care Facilities, Nurse Aide Registry, dated
17 October 2001
* Diploma, Pittsburgh Institute of Aeronautics Career Services, Truck Driving Program, dated 28 December 2007
* Diploma, Pittsburgh Institute of Aeronautics Career Services, Heavy Equipment Operator Program, dated 22 July 2010

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 2 February 1989.  He completed training and he was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).

3.  On 13 June 1994, he tested positive for the use of cocaine during a unit urinalysis test.

4.  On 26 July 1994, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct – abuse of illegal drugs.  On this same day, the applicant acknowledged receipt of the notification.

5.  On 26 July 1994, he consulted with legal counsel and he was advised of the basis for the contemplated separation, the possible effects of a discharge under other than honorable conditions, and the rights available to him.  He elected to be represented by counsel, but he waived consideration of his case before an administrative separation board, contingent upon his receipt of a characterization of service no less favorable than general, under honorable conditions.  He indicated his intent to submit statements in his own behalf before the required suspense date.

6.  On 27 July 1994, his immediate commander recommended his discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct – abuse of illegal drugs.

7.  On 3 August 1994, he submitted a statement in his own behalf, in which he summarized his career, duty assignments, and training, deployment, and leadership opportunities.

8.  On 10 August 1994, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14, and directed he receive a General Discharge Certificate.  On 24 August 1994, he was discharged accordingly.  His DD Form 214 shows he was discharged by reason of misconduct.  He completed 5 years, 6 months, and 23 days of creditable active service.  The highest rank/grade he attained while serving on active duty was sergeant (SGT)/E-5.

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

10.  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.

11.  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 for upgrade of his general discharge was carefully considered; however, there is an insufficient evidentiary basis to support this request.

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.  The evidence of record shows he consulted with counsel and he was advised of the basis for the separation action.

3.  Based on his record of misconduct - - an instance of illegal drug usage while a noncommissioned officer - - his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20110012713



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