IN THE CASE OF:
BOARD DATE: 7 February 2012
DOCKET NUMBER: AR20110014870
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 discharge under other than honorable conditions to honorable.
2. The applicant states:
* his life has changed drastically since his discharge
* he is sober and has maintained employment
* his discharge characterization hinders employment opportunities
* Army Regulation 600-85 (The Army Substance Abuse Program) was overlooked during his discharge proceedings
* the regulation mandates that limited use of evidence cannot be used in proceedings for elimination against a Soldier and if the government introduces limited use of evidence in separation proceedings, then the Soldier must receive an honorable discharge
3. The applicant provides page 2 of his administrative separation board summary of proceedings.
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 29 April 1986 for a period of 3 years. He completed his training and was awarded military occupational specialty 71L (administrative specialist). He was promoted to specialist four on 25 August 1987.
3. On 21 April 1988, nonjudicial punishment (NJP) was imposed against the applicant for driving drunk and using cocaine.
4. On 27 May 1988, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct (use of illegal drugs). The unit commander cited the following specific reasons:
* attempts to rehabilitate the applicant as a satisfactory Soldier have failed and further effort is unlikely to succeed
* he tested positive for cocaine
* drunken driving
5. On 31 May 1988, he consulted with counsel and requested consideration of his case by an administrative separation board.
6. On 10 June 1988, the applicant's unit commander initiated separation proceedings under the provisions of Army Regulation 635-200, paragraph
14-12c, for misconduct (use of illegal drugs). He cited the following specific reasons:
* the applicant tested positive for cocaine use
* drunken driving
* the applicant was declared an alcohol abuse rehabilitation failure
* the applicant was initially self-enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 17 December 1987
7. On 14 September 1988, a board of officers convened and the applicant appeared with counsel. The board of officers found the applicant was undesirable for further retention in the Army as supported by his commission of two serious military offenses (drunk driving and possession and use of cocaine). The board recommended his discharge from the military under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c. On page 5 of the summary of proceedings, the president of the board stated, "After strong consideration and advice from my legal advisor regarding your issue pertaining to limited use of evidence presented in this proceeding: I find that we will continue with this proceedings at this time." The president continued, "That there has been no limited use of evidence introduced into this proceeding at this time."
8. The separation authority approved the board's recommendation.
9. On 7 November 1988, the applicant was discharged under other than honorable conditions for misconduct (abuse of illegal drugs) under the provisions of Army Regulation 635-200, paragraph 14-12c. He completed a total of 2 years, 6 months, and 9 days of creditable active service.
10. The applicant provides page 2 of the summary of proceedings of his administrative separation board which states:
* limited use of evidence was presented to the Board members in the applicant's separation packet (applicant was self-referred to ADAPCP)
* Army Regulation 600-85 mandates that limited use of evidence cannot be used in a proceeding for elimination against a Soldier and if the government introduces limited use of evidence in separation proceedings, that Solder must receive an honorable discharge
11. There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.
12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. Chapter 14, in effect at the time, established policy and prescribes 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, and abuse of illegal drugs. The issuance of a discharge under other than honorable conditions was normally considered appropriate. However, the separation authority could direct the issuance of a general discharge if such was merited by the member's overall record.
13. Army Regulation 635-200, paragraph 3-7a, states 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.
14. 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. The evidence of record does not support the applicant's contention of improper application of limited use evidence during his administrative separation proceedings. The evidence shows the president of the board declared that "there has been no limited use of evidence introduced into this proceeding at this time."
2. He contends his character of discharge hinders employment opportunities. However, discharges are not upgraded for the purpose of enhancing employment opportunities.
3. His record of service included one NJP for drunk driving and using cocaine. As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.
4. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
5. The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.
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 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) AR20110014870
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20110014870
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2009 | 20090009742
On 21 February 1990, the applicant was discharged. Paragraph 6-5d, states that a Soldier will be issued an Honorable Discharge Certificate regardless of his or her overall performance of duty, if the discharge is based upon limited use evidence. Under the provisions of Army Regulation 600-85, paragraph 6-5d, a Soldier will be issued an Honorable Discharge Certificate regardless of his or her overall performance of duty, if the discharge is based upon "limited use" evidence.
ARMY | BCMR | CY2010 | 20100025287
On 27 April 1988, the applicant's immediate commander, CPT MJS, notified the applicant 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 - commission of a serious offense - abuse of illegal drugs. On 20 June 1988, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct -...
ARMY | BCMR | CY2004 | 2004100770C070208
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 December 2004 DOCKET NUMBER: AR2004100770 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The applicant requests, in effect, reconsideration of his of earlier request to correct his record to show he was retired due to a physical disability with pay and benefits, in lieu of being discharged with a general...
ARMY | BCMR | CY2010 | 20100028206
On 21 March 1988, the applicant provided a statement to an investigator stating he had attempted to self refer himself to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) but the clinic was closed. On 15 June 1988, the discharge authority approved the discharge under Army Regulation 635-200, paragraph 14-12c, for misconduct - drug abuse, and directed the applicant receive an under honorable conditions discharge. There is neither any available evidence to substantiate the...
ARMY | BCMR | CY2008 | 20080019081
In his statement in his own behalf, the applicant essentially stated that he had done a lot of wrong for which he was very sorry, that he never did drugs as a civilian, but that he started using drugs a few months after being with his unit. The applicant contends that his general discharge should be upgraded to an honorable discharge. It also shows that he was discharged for the abuse of illegal drugs, which is a serious offense, and the applicant failed to provide evidence which shows...
ARMY | BCMR | CY2002 | 2002069246C070402
On 20 February 2002, the Army Discharge Review Board denied the applicant’s request for an honorable discharge. The Board reviewed the applicant’s record of service which included five nonjudicial punishments, two of which were for cocaine use, and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Carl W. S. Chun Director, Army Board for Correction of Military RecordsINDEXCASE IDAR2002069246SUFFIXRECONDATE...
ARMY | BCMR | CY2005 | 20050000981C070206
On 28 September 1987, the applicant's unit commander recommended that a bar to reenlistment be imposed against him for the two nonjudicial punishments under Article 15 he received on 21 May 1987 and 24 September 1987. The applicant was discharged on 12 July 1988 under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct commission of a serious offense. There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its...
ARMY | BCMR | CY2005 | 20050000981C070206
On 7 June 1988, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200, paragraph 14-12 for abuse of illegal drugs. The applicant was discharged on 12 July 1988 under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct – commission of a serious offense. There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.
ARMY | BCMR | CY2006 | 20060010632
On 24 July 1989, the applicant was discharged by reason of misconduct abuse of illegal drugs after completing 2 years, 3 months, and 24 days of active military service. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter. A separation code of "JKK" applies to persons who are separated by reason of misconduct abuse of illegal drugs under the provisions of chapter 14-12c, Army Regulation 635-200.
ARMY | BCMR | CY2007 | 20070004778C071029
On 21 June 1988, the applicant's commander notified the applicant he was initiating action to separate him under the provisions of Army Regulation 635-200, chapter 9, for alcohol abuse - rehabilitation failure based on the applicant’s recurring alcohol-related problems and his inability to rehabilitate. On 12 July 1988, the applicant was discharged, in pay grade E-1, with a general discharge under honorable conditions under the provisions of Army Regulation 635-200, chapter 9, for alcohol...