BOARD DATE:	 5 January 2012 

		DOCKET NUMBER:  AR20110013226 


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 discharge.

2.  The applicant states he entered the Army in 1973 and served his first 4-year enlistment with distinction and honor.  He reenlisted in 1977 and continued to serve 11 more years before he fell into an isolated lapse of personal and professional judgment.  When this moral failure occurred, he was a decorated, airborne qualified, expert infantryman who had been awarded the Meritorious Service Medal years prior as an E-5.  He was in his 16th year of service, serving as a drill sergeant at Fort Benning, GA, when he fell victim to temptation and used illegal substances in order to stay awake during the grueling 16-hour long days.  He made a foolish, life-altering decision and ever since has profoundly regretted it. 

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Five statements of support
* Two pages of his DA Form 2-1 (Personnel Qualification Record)

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 record shows he enlisted in the Regular Army (RA) on 29 May 1973 and he held military occupational specialty 11C (Indirect Fire Infantryman).  He was discharged for the purpose of immediate reenlistment on 28 February 1977.  The DD Form 214 he was issued for this period of service shows he completed 3 years, 9 months, and 2 days of creditable active service.

3.  He reenlisted in the RA on 1 March 1977.  He was awarded the Army Service Ribbon, National Defense Service Medal, Noncommissioned Officer (NCO) Professional Development Ribbon with Numeral 3, Parachutist Badge, Expert Marksmanship Qualification Badge with Rifle Bar (M-14), Overseas Service Ribbon, Army Achievement Medal (2nd Oak Leaf Cluster), Army Good Conduct Medal (5th Award), Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Meritorious Service Medal.  The highest rank/grade he held was staff sergeant/E-6.

4.  On 21 July 1981, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for violating a lawful general regulation by failing to go at the prescribed time to his appointed place of duty.

5.  He was assigned to Fort Benning, GA, as a drill sergeant on 15 October 1988.

6.  On 17 October 1988, at Fort Benning, GA, he participated in a command urinalysis and his urine tested positive for cocaine.

7.  On 18 November 1988, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct, specifically the abuse of illegal drugs, and recommended the applicant receive an under other than honorable conditions discharge.

8.  On 18 November 1988, 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 possible effects of an under other than honorable conditions discharge and a general discharge.  He was also advised of the procedures and rights that were available to him.  He acknowledged he understood if he were issued an under other than honorable conditions discharge he could expect to encounter considerable prejudice in civilian life and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.  He requested consideration of his case by an administrative separation board. 

9.  On 21 December 1988, a bar to reenlistment certificate was placed against him for testing positive for cocaine on the urinalysis test.

10.  On 13 January 1989, he was convicted by a summary court-martial of one specification of wrongfully using cocaine between 7 and 17 October 1988.  He was sentenced to forfeiture of $895 for one month and reduction to sergeant/E-5.

11.  His records contain DA Forms 4187 that show his duty status as follows:

* 6 - 9 February 1989, confined by civil authorities for driving without automobile insurance
* 12 - 14 February 1989, absent without leave (AWOL)

12.  On 3 April 1989, a board of officers convened to consider his case.  The board adjourned on 4 April 1989.  In its findings, the board recommended the applicant be discharged from the service because of misconduct - abuse of illegal drugs with an under other than honorable conditions discharge.

13.  On 19 May 1989, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for abuse of illegal drugs.  He directed the applicant be reduced to the lowest enlisted grade and receive an under other than honorable conditions discharge.  On 2 June 1989, the applicant was discharged accordingly.  

14.  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 a total of 15 years, 11 months, and 28 days of creditable active service with 7 days of time lost due to confinement and AWOL.

15.  The applicant provides five statements of support, dated between 20 April 2010 and 6 April 2011, wherein several acquaintances of the applicant stated he was a reliable, selfless, trustworthy individual who serves as a role model for the youth in the community.

16.  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.  

17.  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 court-martial he received for wrongfully using cocaine.  Accordingly, his immediate commander initiated separation action against him.

2.  His use of cocaine was not an isolated lapse of judgment.  Shortly after that incident he was involved in further misconduct.

3.  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.  

4.  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.

5.  Although the applicant's post-service conduct may be noteworthy, it does not mitigate the fact that he was convicted of wrongfully using cocaine during his service.

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)                                         AR20110013226





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ABCMR Record of Proceedings (cont)                                         AR20110013226



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