IN THE CASE OF:	  

		BOARD DATE:  12 January 2012

		DOCKET NUMBER:  AR20110013737 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  He states he had a problem with the misuse of drugs while he was in the Army.  He was never offered any help but was discharged instead.  He has since attended rehabilitative treatment and has not used any drugs since.  

3.  He did not provide any additional documentation. 

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.  His record shows he had prior service in the U.S. Army Reserve.  On 14 May 1993, he was granted a waiver for pre-accession drug and alcohol disqualification, and on 17 May 1993, he enlisted in the Regular Army (RA) in the grade of specialist (SPC)/E-4.  After the completion of training, he served in military occupational specialty 11M (Fighting Vehicle - Infantryman). 

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows, in
item 9 (Awards, Decorations & Campaigns) he earned the Army Service Ribbon and National Defense Service Medal.  Item 18 (Appointments and Reductions) of this form shows SPC/E-4 was the highest rank he held while serving on active duty.  

4.  His record documents no specific acts of valor, significant achievement, or service warranting special recognition.  

5.  He was administered non-judicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using cocaine between 23 September and 
8 October 1993, and again between 1 and 4 April 1994.

6.  He underwent a mental status evaluation on 7 June 1994.  He was noted to have met the retention standards with no psychiatric disease or defect which warranted disposition through medical channels.  He was cleared for any administrative action deemed appropriate by his chain of command. 

7.  On an unknown date, he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, commission of a serious offense, for abuse of illegal drugs.  The unit commander recommended he be issued a UOTHC discharge.  

8.  He acknowledged receipt of the proposed separation action on 21 July 1994.  He consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this legal counsel he completed an election of rights in which he requested consideration of his case by a board of officers, personal appearance before a board of officers, and consulting counsel.  He also elected to submit a statement in his own behalf; however, a copy of this statement is not in the available record.  

9.  On 28 July 1994, the General Court-Martial Convening Authority (GCMCA) directed that a board of officers convene to make a determination on his case.

10.  On 16 August 1994, the applicant consulted with counsel and decided to waive consideration of his case by a board of officers. 
11.  On the same date, the appropriate separation authority approved the separation action under the provisions of Army Regulation 635-200, paragraph 14-12c and directed that the applicant be reduced to the lowest enlisted grade and given a UOTHC discharge.

12.  Accordingly, he was discharged on 30 August 1994, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct, with a UOTHC discharge.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he had completed 1 year, 
3 months, and 9 days of net active service for this period.  

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 of that regulation 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, conviction by civil authorities, desertion, or absences without leave.  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 UOTHC was normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7a, provided that an HD was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, states 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.  He contends he was discharged from the Army and never offered any assistance for his drug problem.  

2.  The evidence of record shows he was granted a waiver for entry into the RA due to pre-accession drug use.  At that time, the Army trusted that his use of drugs was in the past.  

3.  His record shows that he violated the Army's established drug abuse policy on two separate occasions and used illegal drugs, which compromised the trust and confidence placed in him as a Soldier.  

4.  He had a duty to support and abide by the Army's drug policies and by abusing illegal drugs the applicant risked his military career.  As a result, he was separated with a UOTHC discharge by reason of misconduct.  

5.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The fact that he has not engaged in any illegal drug use since he completed the rehabilitation program is noteworthy.  However his post service conduct alone is insufficient evidence to support an upgrade to his discharge.  

6.  As such, his service does not warrant an upgrade of his discharge to HD or general.

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)                                         AR20110013737





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ABCMR Record of Proceedings (cont)                                         AR20110013737



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