IN THE CASE OF:  

		BOARD DATE:  14 August 2012

		DOCKET NUMBER:  AR20120001517


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 general discharge to an honorable discharge.

2.  The applicant states:

	a.  as a result of a positive urinalysis result in 1989, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), reduction to the rank/grade of sergeant (SGT)/E-5, and a general discharge.

	b.  He does not deny the urinalysis results and he will not offer any excuses for his actions – he made a serious error in judgment that ended his otherwise honorable military career.

	c.  With the exception of this one incident, he honorably served as a model Soldier and an outstanding noncommissioned officer (NCO) for nearly 14 years.

	d.  He has served honorably as a Department of the Army (DA) civil servant for the past 12 years and he will continue to serve as long as he adds value to the organization.

	e.  He respectfully asks the Board to consider his prior performance of duty, as well as his current government service, in their decision regarding his request.

	f.  He received numerous awards as a Soldier and DA civilian that warrant consideration.

	g.  He has deployed to Iraq on 4 occasions for a total of 20 months in support of U.S. Army Soldiers on a variety of weapon systems – he considers it a high honor to serve those who serve in defense of our country.

	h.  He hopes to demonstrate to the Board that despite the incident that resulted in his general discharge, he has served his country honorably for most of his adult life and intends to continue serving for as long as he is allowed.

3.  The applicant provides:

* A self-authored letter, dated 11 January 2012
* DD Form 214 (Report of Separation from Active Duty) for the period ending 19 February 1979
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 3 January 1990
* Standard Form (SF) 50-B (Notification of Personnel Action), dated
4 January 2012
* Global War on Terrorism certificate, dated 23 June 2010
* DA Form 5654 (Department of the Army Achievement Medal for Civilian Service), dated 22 August 2001
* DA Form 4689 (Department of the Army Commander's Award for Civilian Service), dated 3 February 2004
* DA Form 4689, dated 20 September 2005
* DA Form 4689, dated 15 October 2007
* DA Form 5655 (Department of the Army Superior Civilian Service Award), dated 13 May 2010

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 1 April 1976.  He completed initial entry training and he was awarded military occupational specialty (MOS) 05B (Radio Operator).  He served through multiple periods of enlistment, reenlistment, or extension, in a variety of stateside and overseas assignments, and attained the rank/grade of staff sergeant (SSG)/E-6.  At later points in his career, after completing the appropriate training, he was awarded MOS 29Y (Satellite Communications (SATCOM) Systems Repairer) and MOS 31G (Tactical Communications Chief).

3.  On 5 July 1989, he accepted NJP, under the provisions of Article 15, UCMJ, for wrongfully using marijuana between 23 April 1989 and 23 May 1989, which was confirmed by biochemical testing of a urine sample he submitted.

4.  On 20 July 1989, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct – commission of a serious offense.  The reason for the proposed action was the applicant submitted a urine sample that tested positive at the Fort Meade, MD Testing Center on 23 May 1989.  On 26 July 1989, the applicant acknowledged receipt of the notification memorandum.

5.  On 31 July 1989, after consultation with counsel, he acknowledged he had been advised by counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 14, and its effect, of the rights available to him and of the effect of any action taken by him in waiving his rights.  Further, he requested a personal appearance before and consideration of his case by an administrative separation board and representation by counsel at his administrative separation board.

6.  His immediate commander subsequently recommended his separation from the Army under the provisions of Army Regulation 635-200, chapter 14.  The basis for the recommendation was the applicant submitted a urine sample that tested positive on 23 May 1989.

7.  On 6 September 1989, the separation authority referred the applicant's case to an administrative separation board.

8.  On 23 October 1989, an administrative separation board convened to consider the applicant's separation action.  The board recommended the applicant's separation for misconduct with the issuance of a General Discharge Certificate.

9.  On 4 December 1989, the separation authority approved the administrative separations board's findings and recommendation and directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct – commission of a serious offense, with a General Discharge Certificate.  A handwritten note indicates the execution of the discharge is suspended until the applicant's expiration of term of service (ETS) on 28 February 1990.

10.  On 3 January 1990, the applicant was subsequently discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct – abuse of illegal drugs, with a general discharge.  He completed 10 years,
10 months, and 14 days of net active service during this period of active duty, and 2 years, 10 months, and 19 days of prior active service, for a total of
13 years, 9 months, and 3 days of creditable active service.

11.  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.

12.  The applicant provides several civilian service awards he received that attest to his successful career as a civil servant.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It further sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

	a.  Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal ETS.  The regulation in effect at the time stated individuals in pay grades E-5 and above would be processed for separation upon discovery of a drug offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

	b.  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's request for upgrade of his discharge from general to honorable was carefully considered; however, there is an insufficient evidentiary basis to support his request.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The evidence of record shows he consulted with counsel and he was advised of the basis for the separation action.

3.  Based on his record of misconduct; specifically, his illegal drug use, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Although an under other than honorable conditions discharge was normally considered appropriate under the authority and reason for his discharge, it appears that the applicant's entire service was considered resulting in the recommendation and issuance of a general discharge.

4.  His post-service success as a civilian employee of the Army is acknowledged; however, it does not lessen the severity of the conduct that resulted in his discharge.

5.  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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20120001517



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