IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110017467 


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 that his general, under honorable conditions discharge be upgraded to honorable.  He also requests that the Defense Central Investigations Index (DCII) be expunged of any records submitted by the U.S. Army Criminal Investigation Command (USACIDC) to the Federal Bureau of Investigations (FBI) pertaining to the nonjudicial punishment he received for wrongful use of a controlled substance.

2.  The applicant states he has recently learned that there exists a FBI record and has also recently learned that he was suffering from depression caused by service related injuries at the time of the misconduct that led to his discharge.  He contends the records reflect that at the time of his discharge he was not medically cleared for discharge because he had chronic ankle injuries.  He continues that prior to the injuries, he had no misconduct in his record and received the Good Conduct Medal and completed an overseas tour during the Cold War.  

3.  The applicant states that he cleaned himself up and became a police officer and received five letters of commendation.  He subsequently became a State of Massachusetts investigator for the Board of Registration in Medicine and the Department of Education.  He contends that he was about to be promoted but during a background investigation, his FBI record and character of his discharge were discovered.  Not only was he denied the promotion, he was also terminated.

4.  The applicant provides no additional evidence.

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 is requesting that the DCII be expunged of any records pertaining to a charge of wrongful use of a controlled substance.  However, there is no evidence showing he has exhausted all administrative remedies available to him.  Specifically, there is no evidence showing he requested an amendment or removal of the titling actions upon which the DCII Index information is based through the USACIDC.  This administrative remedy must be exhausted prior to consideration of his case by this Board.  Therefore, this issue will not be discussed further in this Record of Proceedings.  The applicant has been informed by separated correspondence of the disposition of this portion of his request.

3.  The applicant enlisted in the Regular Army on 13 November 1986 and upon completion of initial entry training he was awarded military occupational specialty 31C (Single Channel Radio Operator).

4.  He accepted nonjudicial punishment on 3 July 1990 for wrongful use of cocaine and on 20 October 1990 for failing to go at the time prescribed to his appointed place of duty.

5.  DA Forms 4856 (General Counseling Form) shows he was counseled on the following dates:

	a.  13 September 1990 for failure to follow instructions and failing to be at his place of duty;

	b.  19 September 1990 for failing to report to his place of duty;

	c.  21 September 1990 for being absent from his place of duty on two occasions;
	d.  9 October 1990 for failure to prepare;

	e.  15 October 1990 for rendering a dishonored check.

6.  On 15 January 1991, he was found guilty by a special court-martial of two specifications of failing to go at the time prescribed to his appointed place of duty.

7.  On 19 February 1991, the applicant was advised by his unit commander that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b with a general discharge.  The commander stated that after the applicant had been given repeated opportunities to correct his behavior, he continued to demonstrate a complete lack of respect for regulations and his responsibilities as a Soldier.  Despite all attempts by the command through counseling and nonjudicial punishment to make him aware of the consequences of his actions, he continued to conduct himself in a manner inconsistent with the standards expected of every Soldier.  The applicant was also advised of his right to:

* consult with legal counsel or with civilian counsel at his own expense
* submit statements in his own behalf
* obtain copies of documents that would be sent to the separation authority that supported the proposed separation action
* waive his rights in writing

8.  He consulted with counsel and elected not to submit statements in his own behalf.  He acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He acknowledged he understood that if he received a character of service of less than honorable, he may apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge; however, he realized that an act of consideration by either board did not imply his discharge would be upgraded.

9.  On 9 April 1991, the appropriate separation authority approved the recommendation and directed the issuance of a General Discharge Certificate.  On 18 April 1991, he was discharged accordingly.  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "Misconduct - Pattern of Misconduct."

10.  There is no evidence in the available records showing his misconduct was as a result of a medical condition.

11.  There is no evidence that indicates he applied to the ADRB for an upgrade of his discharge.

12.  Army Regulation 635-200 (Personnel Separations) 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.

13.  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 contends that his discharge should be upgraded because he was suffering from depression, which was caused by service related injuries, at the time of the misconduct that led to his discharge.  However, there is no evidence in his military records, and he provided none, that substantiates his contention.

2.  The available evidence confirms his separation processing was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  His record of indiscipline includes nonjudicial punishment for wrongful use of cocaine, a court-martial conviction, and several negative counseling statements.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This record of misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

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)                                         AR20110017467



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ABCMR Record of Proceedings (cont)                                         AR20110017467



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