BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120007915 


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 an upgrade of his general discharge (GD) to an honorable discharge (HD).

2.  The applicant states:

   a.  He acquired a drug and alcohol problem and despite his best efforts he was unable to pass a urinalysis test, which resulted in his discharge.
   
   b.  His life has since dramatically changed.  He has remained sober for the last 22 years and he is now attempting to clear up some of the wreckage from his past.

3.  The applicant provides a self-authored statement.

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 (RA) on 18 February 1986.  He was trained in, awarded, and served in military occupational specialty 31K (Combat Signaler).

3.  On 2 April 1987, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for the wrongful use of cocaine.

4.  On 28 April 1987, the unit commander notified the applicant that he was initiating action to separate him under the provisions Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense, with either an HD or GD based on testing positive for cocaine on 26 February and 31 March 1987.

5.  On 21 May 1987, the applicant underwent a mental status evaluation that showed the following:

* his behavior and thought content were normal
* he was fully alert and oriented
* his mood was flat
* his thinking process was clear
* his memory was good
* he had the mental capacity to understand and participate in separation proceedings
* he was mentally responsible
* he met the retention requirement of Army Regulation 40-501 (Standards of Medical Fitness)

6.  On 17 June 1987, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects.  The applicant completed his election of rights indicating his options to:

   a.  waive consideration of his case by and appearance before an administrative separation board;

	b.  not to make a statement in his own behalf; and 

	c.  representation by counsel.


7.  On 29 June 1987, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, with issuance of a GD.  On 17 July 1987, the applicant was discharged accordingly.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12(c), by reason of “Misconduct – Commission of a Serious Offense," with a GD.  He completed 1 year and 5 months of creditable active service.

9.  The applicant's record is void of any indication that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An honorable or a general discharge may be awarded by the separation authority if warranted by the member's overall record of service; however, an under other than honorable conditions discharge is normally considered appropriate for members separated under these provisions.

	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 contends his GD should be upgraded to an HD because he has been sober for the last 22 years and he is now attempting to correct some of his past wrongs.  While his post-service accomplishments are noted they are not sufficiently mitigating to grant the requested relief in this case.


2.  The evidence of record confirms that the applicant accepted NJP for wrongfully using cocaine.  Subsequently an NJP shows he again tested positive for this controlled substance just over one month later.  Therefore, the applicant violated the Army's policy not to possess or use illegal drugs twice and he compromised the trust and confidence placed in him as a Soldier.  He had the duty to support and abide by the Army's drug policies.  By using illegal drugs, he knowingly risked a military career and clearly diminished the overall quality of his service below that meriting an honorable discharge.

3.  The evidence of record also confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20120007915



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ABCMR Record of Proceedings (cont)                                         AR20120007915



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