BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110014289 


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 to a fully honorable discharge. 

2.  The applicant states he served with honor and dignity during a time of war.  His substance abuse battle was disclosed at the Jacksonville Military Entrance Processing Station.  While dealing with substance abuse at High Wycombe Air Station, his understanding was that if he chose a discharge, it would be honorable due to prior disclosure of his substance abuse.  Otherwise, he would have accepted the hard duty tour offered by his commander at the time. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and DD Form 215 (Correction to DD Form 214).

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 records show he enlisted in the Regular Army on 15 November 1989.  His DD Form 4 (Enlistment/Reenlistment Document) shows he answered in the negative to the questions "have you ever used narcotics, LSD, or other illegal drugs?" and "have you ever been a supplier of narcotics, LSD, or other dangerous drugs or marijuana?"  However, he answered in the positive when asked "has your use of drugs or alcoholic beverages ever resulted in your loss of a job, arrest by police, or treatment for alcoholism?"

3.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 29M (Tactical Satellite/Microwave Repairer).  He served in England from 15 September 1990 to on or about 24 June 1991.  The highest rank/grade he attained during his military service was private/E-2.

4.  In May 1990, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.

5.  He was referred by his immediate commander for an evaluation following his admission that he had a drug problem.  He stated that he had the drug problem before he came into the military but he had been "straight for 2 1/2 years prior to his enlistment." 

6.  His service records reveal an extensive history of negative counseling for various infractions including: multiple instances of failure to report, Army Physical Fitness Test (APFT) failure, failure to report to physical fitness remedial training, and missing formation.

7.  On 9 April 1991, after incidents of relapse, his immediate commander substantiated at least one instance of marijuana use.  His commander also identified him as an alcohol abuser.  He was recommended for enrollment in a drug and alcohol rehabilitation program.

8.  His complete separation packet is not available for review with this case.  However, his service records contain the notification and acknowledgment memoranda as follows:

	a.  On 16 May 1991, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct – commission of a serious offense (abuse of illegal drugs).  The immediate commander recommended a general discharge.

	b.  On 22 May 1991, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel who advised him the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures and rights that were available to him.  He waived consideration of his case by an administrative separation board, waived a personal appearance before an administrative separation board, and elected to submit a statement on his own behalf.

	c.  He further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

	d.  In his statement, he stated that he disagreed with the belief that there was no reason to believe that his conduct would improve upon discharge from the Army.  He believed that his conduct was improving and that his addiction was a disease and that relapse was part of the process. 

9.  On 14 June 1991, Headquarters, 47th Area Support Group published Orders 38-1 ordering his discharge under the provisions of Army Regulation 635-200 effective 25 June 1991. 

10.  The applicant was discharged on 25 June 1991.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 with a general under honorable conditions character of service.  This form further confirms he completed a total of 1 year, 7 month, and 11 days of creditable military service.  It also shows he was awarded or authorized the Army Service Ribbon, the National Defense Service Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

11.  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.

12.  He submitted a memorandum, dated 15 October 1991, from his then defense counsel to the ABCMR.  In this letter, defense counsel noted his concern with the inclusion of "limited use information in his separation packet" and that he was not advised of the specific paragraph of Army Regulation 635-200 under which he was being considered for discharge.  However, there is no record the applicant submitted an ABCMR application in 1991. 

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 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, and convictions by civil authorities.  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 under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.  

14.  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.  Although the complete facts and circumstances surrounding his discharge are not available for review, the available evidence of record shows he committed a serious offense in that he wrongfully used illegal drugs.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were presumably met and his rights were fully protected throughout the separation process.  He was accordingly discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his misconduct.

2.  The fact that his commander did not specify the specific sub-paragraph in the notification memorandum does not change the fact that he was being considered for discharge and he acknowledged receipt of the notification memorandum.  Additionally, the notification memorandum clearly stated "misconduct abuse of illegal drugs."  

3.  The fact that his then defense counsel was concerned about the use of "limited use" information does not invalidate the misconduct.  Additionally, aside from the defense counsel's statement in support of a non-existing 1991 ABCMR application, there is no evidence in the official records regarding the alleged issue of "limited use."  Additionally, the applicant had previously received NJP for wrongfully using illegal drugs.  There is no provision to disallow such information from being used in the processing of his separation.

4.  The evidence of record shows his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  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)                                         AR20110014289



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ABCMR Record of Proceedings (cont)                                         AR20110014289



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