BOARD DATE:	  26 April 2012

		DOCKET NUMBER:  AR20110020797 


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 an honorable discharge.

2.  The applicant states he believed he was going into the Army as a heavy equipment operator; he was lied to by his recruiter.  He was young and depressed and used drugs once, which was the wrong thing to do.  He was tested three times while he still had the drugs in his system.  He was discharged and that discharge has prevented him from leading a normal life because he cannot get a job.  The general discharge is destroying his life and he has nowhere to turn.

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

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 17 May 1988 at 23 years, 6 months, and 14 days of age.  His enlistment contract contains a DA Form 3286-59 (Statement for Enlistment United States Army Enlistment Option), dated 17 March 1988.  This form shows he elected and was guaranteed military occupational specialty (MOS) 12B (Combat Engineer) as his enlistment option.

3.  He completed one-station unit training and was awarded MOS 12B.  The highest grade he attained while serving on active duty was private/E-1.

4.  His records contain three negative DA Forms 4856-R (General Counseling Form) ranging in date from 20 September 1988 to 18 October 1988.  These forms show he was counseled for:

* missing an accountability formation
* having poor physical fitness
* lacking motivation and initiative
* drinking to the point of impairment
* failing to be promoted to the rank/grade private/E-2

5.  His records contain a DA Form 5180-R (Urinalysis Custody and Report Record), dated 18 October 1988.  This form lists his social security number and indicates his urine specimen tested positive for cocaine.

6.  His records contain a DA Form 3975 (Military Police Report) which shows he was arrested for robbery by civil authorities on 16 November 1988.

7.  His records contain two DA Forms 4187 (Personnel Action), dated 17 November 1988 and 1 December 1988.  These forms show he was confined by civil authorities for 16 days while pending an arraignment for suspected robbery and returned to a present-for-duty status on 1 December 1988.

8.  On 16 December 1988, he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for wrongfully using cocaine.

9.  His records contain a DA Form 3822-R (Report of Mental Status Evaluation), dated 6 January 1989.  The medical official indicated he had the mental capability to understand and participate in proceedings, was mentally responsible, and met retention requirements.  The official further indicated he had a strong desire to remain in the service.

10.  His records contain two additional DA Forms 4856-R, dated 3 January 1989 and 31 January 1989.  These forms show:

* he was making a recognizable improvement in his attitude, motivation, and sense of responsibility
* he was heading in the right direction to become an excellent Soldier
* his work performance and the appearance of his room and uniform were the best in his squad
* he showed a great deal of interest in his work, pushed himself beyond expectations, and performed well under difficult working conditions
* he became a motivator to his squad
* his commander noted he was considering recommending retention based on marked improvement

11.  On 7 March 1989, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c.  The applicant acknowledged receipt of the notification on the same date.

12.  On 7 March 1989, he consulted with legal counsel and was advised of the basis for the contemplated separation, the possible effects of a general discharge under honorable conditions, and the rights available to him.  He indicated his desire to waive consideration of his case before a board of officers and to a personal appearance.  Additionally, he chose not to submit statements on his own behalf.

13.  On 13 March 1989, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – abuse of illegal drugs.

14.  On 20 March 1989, he was discharged accordingly.  His DD Form 214 shows he received a general discharge under honorable conditions by reason of misconduct – abuse of illegal drugs.  He completed 9 months and 10 days of creditable active service with 52 days of lost time.

15.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-200 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.

17.  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 that his recruiter lied to him in that he was supposed to be enlisted as a heavy equipment operator, but was instead was trained as a combat engineer.  He further argues, in effect, this caused him to become depressed and the depression combined with his youth and inexperience led him to use cocaine on one occasion.

2.  The argument that his recruiter lied to him lacks merit.  His enlistment contract clearly shows he selected and was guaranteed MOS 12B as an enlistment option.  Additionally, he signed the appropriate documentation acknowledging his selection.

3.  The applicant contends that his discharge should be upgraded because he was young and depressed at the time of his service.  Records show he was 24 years of age at the time of his offenses.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  He tested positive for the use of cocaine.  It does not matter if he was tested one time or three times, he knowingly and wrongfully made the choice to use an illegal drug.  Testing positive for illegal drug use is a punishable offense.  In addition to illegal drug use, his records contain a history of negative counseling and one instance of being confined by civil authorities for robbery.

5.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable 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)                                         AR20110020797



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ABCMR Record of Proceedings (cont)                                         AR20110020797



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