BOARD DATE:	  13 November 2012

		DOCKET NUMBER:  AR20120008637 


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 to an honorable discharge.

2.  The applicant states all of his service up to the time of his infraction was completely honorable.  He made one mistake.  His behavior has been exemplary since he was discharged.  He believes his records should reflect his overall service which was honorable.  

3.  The applicant provides no additional 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.  The applicant's military records show he enlisted in the Regular Army, in pay grade E-4, on 3 March 1983, with prior U.S. Marine Corps enlisted service.  He completed training and was awarded military occupational specialty 55G (Nuclear Weapons Specialist).  He arrived in Germany on 20 October 1984.  

3.  He received counselings for the following:

* On 25 August 1986, for being absent from physical training
* On 3 September 1986, for his personal appearance, job performance, and leadership

4.  On 15 October 1986, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using cocaine.  

5.  He was reduced to pay grade E-4 on 15 October 1986.

6.  On 29 October 1986, the applicant’s company commander initiated action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 14-12(c), Commission of Serious Offenses, with a general discharge.  He advised the applicant of his rights.

7.  In a Synopsis of Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Rehabilitation Activity Memorandum, dated 4 November 1986, the Clinical Director stated:

	a.  The applicant was referred to the Bremerhaven Counseling Center on 8 October 1986 due to a positive urinalysis for cocaine.  On 27 October 1986, he was enrolled in Track II of the ADAPCP and he was scheduled to attend a 2-day Drug and Alcohol Education Awareness Class on 6 and 7 November 1986.

	b.  The positive urinalysis fell under the mandated action in accordance with Interim Change 106, Army Regulation 600-85 (The Alcohol and Drug Abuse Prevention and Control Program).  At the time of the applicant's positive urinalysis the applicant was a sergeant.  Enlisted Soldiers (serving in pay grades E-5 to E-9) who were identified as illegal drug abusers would be processed for separation in accordance with chapters, 9, 13, or 14, of Army Regulation 635-200.



8.  On 4 November 1986, after consulting with counsel, the applicant acknowledged the proposed separation action.  He acknowledged he understood the basis for the contemplated separation action.  He also acknowledged the effects of the issuance of a general discharge and the rights available to him.  He waived his rights and elected not to submit a statement in his own behalf.

9.  On 12 December 1986, the applicant’s company commander recommended the applicant be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12(c), due to misconduct and drug abuse.

10.  On 12 December 1986, the appropriate separation authority directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12(c) with a general discharge.

11.  He was discharged under the provisions of Army Regulation 635-200, paragraph 14-12(c), for Misconduct – Drug Abuse, with a general discharge, in pay grade E-4, on 2 February 1987.  He was credited with completing 3 years and 11 months of net active service.

12.  There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

13.  Army Regulation 635-200, in effect at the time, 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 included 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.

14.  Paragraph 14-12c (2) of the regulation also provided for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs.  It provided that individuals identified as first time drug abusers, grades E-5 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could 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.  The separation authority could direct a general discharge if such a discharge were merited by the Soldier's overall record.



15.  Army Regulation 635-200, paragraph 3-7a, stated 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 be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was counseled twice for misconduct.  He was also punished under Article 15 for wrongfully using cocaine and reduced in rank as a result.  On 29 October 1986, he was advised of his company commander's intent to discharge him for misconduct abuse of illegal drugs.  He acknowledged the notification and elected not to submit a statement in accordance with regulatory guidance, he was discharged for misconduct-drug abuse, with a general discharge.  

2.  At the time of his discharge, the issuance of a discharge under other than honorable conditions was normally considered appropriate.  It appears that his overall record was taken into consideration and it was determined that his misconduct diminished the quality of his service below that meriting a fully honorable discharge.

3.  His contention that his behavior has been exemplary since he was discharged was also noted.  However, it is not sufficiently mitigating to warrant an upgrade of discharge.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights and he established no basis for upgrading his 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)                                         AR20120008637



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ABCMR Record of Proceedings (cont)                                         AR20120008637



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