IN THE CASE OF:	  

		BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110017609 


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 under honorable conditions to fully honorable.

2.  The applicant states there was no error or injustice.  He was a good professional airborne Soldier until he had his drug incident.  He is a man of God now and wants his discharge upgraded for this reason.

3.  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's records show he enlisted in the Regular Army on 25 October 1983.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman).

3.  He served in Germany from 15 July 1985 to 4 March 1988 and he attained the rank/grade of sergeant/E-5.  He was awarded the Army Service Ribbon, Overseas Service Ribbon, Parachutist Badge, Army Good Conduct Medal, and Marksman Marksmanship Qualification Badge with Grenade and Rifle Bars.

4.  On 27 September 1987, he submitted a urine sample that tested positive for cocaine.

5.  On 3 November 1987, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine.

6.  On 1 December 1987, he underwent a mental status evaluation.  His behavior was fully oriented with normal thought, good memory, and normal behavior.  He had the mental capacity to understand and participate in proceedings and he was mentally responsible.  The military physician cleared him for any administrative actions deemed appropriate by his chain of command.

7.  On 13 January 1988, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct – commission of a serious offense (abuse of illegal drugs).  Specifically, the immediate commander cited the applicant's prior instance of drug abuse.  The immediate commander recommended a general discharge.

8.  On 13 January 1988, the applicant acknowledged receipt of the commander's intent to separate him.

	a.  He subsequently consulted with legal counsel who advised him of the:

* basis for the contemplated separation action for misconduct
* type of discharge he could receive and its effect on further enlistment or reenlistment
* possible effects of this discharge
* procedures and rights available to him

	b.  He requested consideration of his case by an administrative separation board, if eligible, a personal appearance before an administrative separation board, if eligible, and elected to submit a statement on his own behalf.  However, since he had less than 6 years of total active and Reserve service at the time of separation, he was ineligible for an administrative separation board).

	c.  He further acknowledged he understood:

* he could expect to encounter substantial prejudice in civilian life if a general discharge were issued to him
* 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

9.  Subsequent to this acknowledgement, his immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct – commission of a serious offense – with the issuance of a general discharge under honorable conditions.  The immediate commander stated that no other disposition of the applicant was considered feasible or appropriate because his continued use of illegal drugs indicated he had no desire to rehabilitate himself.

10.  On 27 January 1988, the applicant's immediate and intermediate commanders recommended his retention on active duty citing his good performance and desire to continue his military career.

11.  On 4 February 1988, the separation authority disapproved the recommendation for retention and approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct – commission of a serious offense – and directed issuance of a general discharge under honorable conditions.

12.  Accordingly, the applicant was discharged on 4 March 1988.

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged on 4  March 1988 under the provisions of Army Regulation 635-200, paragraph 14-12c(2), with an under honorable conditions character of service.  This form further confirms he completed a total of 4 years, 4 months, and 10 days of creditable military service.

14.  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.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, in effect at the time, 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 were merited by the Soldier's overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

16.  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 contends his discharge should be upgraded.

2.  The evidence of record shows the applicant 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 met and his rights were fully protected throughout the separation process.  He was accordingly discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), due to his misconduct.

3.  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 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)                                         AR20110017609



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ABCMR Record of Proceedings (cont)                                         AR20110017609



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