IN THE CASE OF:	  

		BOARD DATE:	    16 August 2012

		DOCKET NUMBER:  AR20120000197 


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 at least a general discharge.

2.  The applicant states the misconduct that resulted in his discharge was caused by another service member.  He has honorable intentions to reenter military service and this is his third attempt to get his foot back in the door.  He is a straightforward guy who works well with others.  He has accomplished many challenges that include raising his child, overcoming work problems, problem solving, “calculating a resolve,” and moving on with the work day.  He is active with kids and stays in shape.

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 22 October 1997.  He was awarded military occupational specialty 88M (Motor Transport Operator).

3.  He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 1 December 1999 for:

* wrongfully possessing and using cocaine between 1 May and 31 May 1999
* wrongfully possessing and using cocaine between 1 July and 31 July 1999
* wrongfully possessing and using crystal methamphetamine between
1 December 1997 and 31 December 1999
* wrongfully possessing and using Lysergic Acid Diethylamide (LSD) between 1 July and 31 July 1998
* wrongfully distributing crystal methamphetamine between 1 July and
31 July 1999

4.  On 1 February 2000, he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personal Separations - Enlisted Personnel), paragraph, 14-12c, for misconduct - commission of a serious offense.  His commander cited the reasons for the applicant's discharge as the distribution of methamphetamines, and the possession and use of marijuana, LSD, cocaine, and methamphetamines.

5.  He submitted a statement acknowledging he had been advised by counsel of the basis for the contemplated separation action for drug abuse.  He had also been afforded the opportunity to consult with appointed counsel or military or civilian counsel of his own choice and he elected to waive:

* 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.  The applicant's commander subsequently recommended his elimination from the service before the expiration of his term of service because he distributed methamphetamines and possessed and used marijuana, LSD, cocaine, and methamphetamines.  He recommended the applicant receive an under other than honorable conditions discharge.

7.  On 7 and 9 February 2000, respectively, the applicant's battalion and brigade commander concurred with the separation action with an under other than honorable conditions discharge.

8.  On 3 March 2000, the separation authority (a major general) approved the recommendation for his discharge under the provisions of Army Regulation
635-200, chapter 14, paragraph 14-12c and directed the issuance of an under other than honorable conditions discharge.

8.  On 14 March 2000, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct.

9.  On 20 March 2006, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to honorable.  On 7 February 2007, after careful review of his application, military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 stated individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  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.

	b.  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.

	c.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows he was punished under Article 15, UCMJ for drug offenses relating to the wrongful distribution of methamphetamines and the wrongful possession and use of LSD, cocaine, marijuana, and methamphetamines.  There is no evidence of record and he did not provide any evidence to show how another service member caused the misconduct which led to his discharge.  His post-service record was considered but does not outweigh the circumstances in this case; therefore, the type of discharge he received properly characterizes his overall record of service.

2.  The evidence shows he 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 available records contain no evidence of procedural or other errors that would have jeopardized his rights.

3.  In view of the foregoing, there is no basis for granting the applicant 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 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)                                         AR20120000197



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ABCMR Record of Proceedings (cont)                                         AR20120000197



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