IN THE CASE OF:	  

		BOARD DATE:	  25 September 2012

		DOCKET NUMBER:  AR20120005491 


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 (UOTHC) discharge.  

2.  He states he was discharged for testing positive on a drug test.

3.  He provides no additional documents. 

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 initially enlisted in the Regular Army on 10 September 1965 and was released from active duty on 9 September 1968.  He enlisted in the Regular Army again on 1 September 1976 and was discharged on 28 June 1979 for the purpose of immediate reenlistment.  He reenlisted on 29 June 1979 and continued to serve on active duty through one reenlistment on 12 June 1985.  

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on 27 December 1985 for two specifications of being absent from his place of duty on 7 and 9 December 1985.  

4.  He was convicted by a summary court martial on 1 February 1988 of being absent without leave (AWOL) from 22 to 30 December 1987 and uttering worthless checks (four specifications).

5.  He was barred from reenlistment on 5 February 1988.
   
6.  He was convicted by a special court-martial on 21 June 1988 of wrongful use of cocaine.  

7.  His DA Form 2-1 (Personnel Qualification Record - Part II) indicates he was arrested on 10 May 1988 for worthless checks and confinement by civil authorities from 10 to 22 May 1988 and on 10 June 1988 by civil authorities for worthless checks.

8.  On 23 August 1988, the company commander notified the applicant of the proposed recommendation to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b for a pattern of misconduct.  He was advised of his rights.  

9.  The applicant acknowledged notification and consulted with legal counsel.  He voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than general under honorable conditions, requested personal appearance before an administrative separation board, and requested representation by military counsel.  He submitted statements in his own behalf.  He stated he didn't willfully or wrongfully use cocaine.  He stated he believed in the military judicial system and he accepted the court's decision.  He also stated he had honorably served this country and the U.S. Army.  He arrived at Fort Polk, LA in January 1987 with personal and financial problems.  He gave a brief history describing his military service from September 1964 to September 1968, August 1976, and September 1988.

10.  On 11 October 1988, the separation authority disapproved the applicant's request for a conditional waiver and waived the requirement for rehabilitative transfer.  The applicant waived his right to an administrative separation board on 13 October 1988.
11.  On 24 October 1988, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of misconduct - pattern of misconduct and directed a UOTHC -discharge.

12.  He was discharged on 31 January 1989 under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct - pattern of misconduct.  He completed 15 years, 4 months, and 9 days total active military service.  He had 22 days of lost time.  

13.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge UOTHC was normally appropriate for a Soldier discharged under this chapter.  
   
14.  Army Regulation, 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.
   
15.  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.  The evidence of record shows the applicant tested positive for cocaine and was convicted by a special court-martial of this offense.

2.  His service record also shows he received one Article 15, one summary 
court-martial, a bar to reenlistment, and two arrests by civil authorities.

3.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of a pattern of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
4.  A UOTHC discharge is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant a general or an honorable discharge.  

5.  His service record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting his request.  

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)                                         AR20120005491





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ABCMR Record of Proceedings (cont)                                         AR20120005491



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