IN THE CASE OF:	  

		BOARD DATE:	    29 March 2012

		DOCKET NUMBER:  AR20110017981 


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.

2.  The applicant states there was no error; however, the time elapsed between his discharge and now has been 13 years and he would like to request an upgrade.  He went through residential drug treatment and graduated.

3.  The applicant provides:

* a Treatment Summary and Referral Form for Residential Drug Abuse Treatment
* certificate for completion of Federal Correctional Institution at Marianna, FL, Residential Drug Abuse Program
* a certificate of achievement for winning the 2005 over-40 best basketball record

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.  He enlisted in the Regular Army on 22 October 1985 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

3.  He accepted nonjudicial punishment (NJP) on:

* 24 August 1987, for wrongful use of marijuana on or between 31 May-30 June 1987
* 15 March 1988, for assault
* 18 April 1988, for wrongful use of cocaine and marijuana on or between 2 January-1 February 1988

4.  On 4 April 1988, the applicant's commander notified him that action was being initiated to separate him under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) based his pattern of misconduct.  The commander advised the applicant of his right to:

* consult with counsel
* obtain copies of documents that would be sent to the separation authority supporting the proposed separation action
* request a hearing before an administrative separation board 
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge

5.  On 27 April 1988, the applicant submitted a statement acknowledging he had been advised by his consulting counsel of the basis for the contemplated separation action drug abuse.  He had been afforded the opportunity to consult with appointed counsel or military or civilian counsel of his own choice and he waived:

* consideration of his case by an administrative separation board
* a personal appearance before an administrative separation board
* submission of statements in his own behalf
* consulting counsel and representation by military and/or civilian counsel

6.  His commander recommended his elimination from the service before the expiration of his term of service by reason of being a second-time drug offender.

7.  On 11 May 1988, the appropriate authority approved the recommendation for the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 and directed his service be characterized as under other than honorable conditions.

8.  On 19 May 1988, he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct – drug abuse.

9.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

10.  The Treatment Summary and Referral Form for Residential Drug Abuse Treatment, dated 22 January 2007, submitted by the applicant documents his treatment for drug abuse while incarcerated at the Federal Correctional Institution at Marianna, FL.

11.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.

	a.  An honorable discharge 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.

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could have been issued only when the reason for the Soldier's separation specifically allowed such characterization.

	c.  Chapter 14 stated individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.

	d.  Paragraph 14-3 stated when a Soldier has completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  He was not processed for separation after his first drug offense for wrongful use of marijuana.  His command apparently believed he was worth retaining in the service.  However, he then committed a second drug offense by wrongfully using marijuana and cocaine.  He committed two drug offenses within 1 year.  He completed over 2 years of service in the Army at the time of his second offense.  He should have been aware of the Army's drug policy by this point in his enlistment.  He also accepted NJP for assault.  These offenses clearly showed his service to be unsatisfactory.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

3.  The ABCMR does not upgrade properly-issued discharges based on the passage of time.

4.  In view of the above, there is an insufficient basis to upgrade the applicant's discharge to an honorable or a general discharge.

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)                                         AR20110017981



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ABCMR Record of Proceedings (cont)                                         AR20110017981



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