IN THE CASE OF:	  

		BOARD DATE:  3 May 2012

		DOCKET NUMBER:  AR20110021484 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, the awards he earned during his service from 1980 to 1985 and his Enlisted Evaluation Reports (EERs) as a noncommissioned officer (NCO) should be considered.

3.  The applicant provides no documentary 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 enlisted in the Regular Army on 26 August 1980 for a period of 4 years.  He completed his training and he was awarded military occupational specialty 11B (infantryman).  On 3 September 1982, he extended his enlistment for a period of 7 months.  He was promoted to sergeant (SGT)/E-5 effective
2 April 1984.  He was honorably discharged on 3 January 1985 for the purpose of immediate reenlistment.  He reenlisted on 4 January 1985 for a period of
4 years.

3.  His EER covering the period April 1985 through July 1985 states he performed all his duties in an outstanding manner.  

4.  On 17 March 1986, nonjudicial punishment (NJP) was imposed against the applicant for wrongfully using marijuana between 1-10 December 1985.

5.  His EER covering the period August 1985 through July 1986 states he was an exceptional Soldier.

6.  On 2 June 1987, NJP was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty on 1 June 1987.

7.  His EER covering the period August 1986 through July 1987 states he is a good NCO.

8.  On 2 October 1987, NJP was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty on 25 September 1987.  His punishment included reduction to specialist (SPC)/E-4.

9.  Between May 1987 and October 1987, he was counseled for writing bad checks, tardiness, being absent from formation, duty performance, and non-payment of just debts.

10.  On 16 February 1988, NJP was imposed against the applicant for wrongfully using cocaine between 4 January and 4 February 1988.  His punishment included reduction to private first class (PFC)/E-3.

11.  On 8 March 1988, the applicant's unit commander initiated separation proceedings against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c, for misconduct (use of illegal drugs).  He cited the applicant's cocaine use as the basis for his recommendation.

12.  On 9 March 1988, he consulted with counsel and requested a personal appearance before an administrative separation board.

13.  On 24 May 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 military service because he committed the alleged misconduct.  The board recommended the applicant be discharged from the service under other than honorable conditions.  On 24 June 1988, the separation authority, a major general, approved the findings and recommendation of the administrative discharge board and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted rank.

14.  On 8 July 1988, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – drug abuse, with an under other than honorable conditions discharge.  He completed 7 years, 10 months, and
13 days of creditable active service.

15.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received the following awards and decorations:

* Army Achievement Medal (Second Oak Leaf Cluster)
* Good Conduct Medal (2d Award)
* NCO Professional Development Ribbon (Primary Level)
* Army Service Ribbon
* Overseas Service Ribbon
* Expert Infantryman Badge
* Expert Marksmanship Qualification Badge with Rifle Bar
* First Class (Sharpshooter) Marksmanship Qualification Badge with Grenade Bar

16.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

17.  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.  

18.  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.

19.  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.  His awards and decorations and his EERs were carefully considered.  However, his record of service during his last enlistment commencing on
4 January 1985 included four NJPs (two of which were for drug abuse) and numerous adverse counseling statements.  He was an E-5 who was subsequently reduced to PFC by UCMJ actions.  His EER evaluations also reflected a downward trend during his last enlistment period.

2.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  He was ultimately reduced to E-1 as a result of his separation action.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

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)                                         AR20110021484



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110021484



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1