IN THE CASE OF:	  

		BOARD DATE:	  2 August 2012

		DOCKET NUMBER:  AR20120001538 


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 his general discharge be upgraded to honorable.

2.  The applicant states:

* 1987 was a grief filled year
* He returned home on two occasions for both his brothers' funerals
* His mother became comatose due to an illness
* He used all his leave for his brothers' funerals and he was told he wouldn't be able to see his mother
* His dilemma was either to disobey a direct order or to see his mother for the last time and he chose the latter
* Prior to this incident his service record was impeccable
* He received three Army Good Conduct Medals
* He made a mistake during a very difficult time 24 years ago

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.  Having prior active service in the Regular Army (RA), he enlisted in the RA on 20 August 1979 for a period of 4 years.  He completed his training and was awarded military occupational specialty 67Y (Attack Helicopter Repairer).  On 4 July 1983, he was honorably discharged for immediate reenlistment.  He reenlisted on 5 July 1983 for a period of 3 years.  He attained the rank of specialist four. 

3.  On 22 December 1986, nonjudicial punishment (NJP) was imposed against the applicant for using cocaine.

4.  The applicant was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph
14-12c, for misconduct (abuse of illegal drugs).  

5.  On 23 February 1987, he consulted with counsel, waived consideration of his case by an administrative separation board, and acknowledged that he might encounter substantial prejudice in civilian life if he was issued a general discharge.  He also elected not to submit a statement on his own behalf.  

6.  On 24 April 1987, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

7.  He was discharged under honorable conditions on 15 May 1987 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (abuse of illegal drugs).  He completed a total of 10 years, 2 months, and 8 days of creditable active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 May 1987 shows he received three awards of the Army Good Conduct Medal.  

8.  There is no evidence in the available record that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  The regulation states that abuse of illegal drugs is serious misconduct.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

10.  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 implies he was discharged for disobeying a direct order because he went home to see his ill mother.  However, evidence shows he was discharged for misconduct (abuse of illegal drugs – cocaine). 

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns, but he failed to do so.

3.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

4.  His record of service during his last enlistment included one NJP for using cocaine.  As a result, his record of service 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 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)                                         AR20120001538





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ABCMR Record of Proceedings (cont)                                         AR20120001538



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