IN THE CASE OF:	  

		BOARD DATE:  8 November 2012

		DOCKET NUMBER:  AR20120008783 


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, in effect, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

   a.  After returning from Germany, he found out his wife had HIV (human immunodeficiency virus).  He went to his commander and tried to get help but didn’t receive any.  His wife left him and told his commander he was violent toward her and he was using drugs.  He went to his commander and asked to get out of the Army but his commander said no.  After he talked with his commander, he was given a drug test and it came up positive, even though he was not on drugs.  He went back to the commander and said he was on drugs as he thought it was his only way to get out [of the Army].  The next day he took another drug test and it came out positive.  This time the commander took his rank and kicked him out.

   b.  He believes everyone deserves a second chance.  The decisions he made were made when he was under stress and no one was there to help.  His record was spotless before he was assigned to Fort Bragg, NC.  He has suffered unjustly and if he did not have the pressure of his family, his career would have ended well.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 records show he enlisted in the Regular Army on 26 April 1983 and he held military occupational specialty 29S (Field Communications Security Equipment Repairer).  He was assigned to the 1112th Signal Battalion, Fort Bragg, NC, on 10 July 1991.

3.  On 24 May 1993, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using cocaine between on or about 9 to 19 April 1993.

4.  On 1 July 1993, 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), paragraph 14-12c, for the commission of a serious offense.  Specifically, he cited the applicant's positive test for cocaine on a unit directed urinalysis.  The commander stated he was recommending a discharge under other than honorable conditions.

5.  On 1 July 1993, the applicant acknowledged receipt of the commander's intent to separate him.  On 7 July 1993, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  He requested to have his case heard by an administrative separation board.

6.  On 16 July 1993, his senior commander recommended approval of the discharge action with a discharge under other than honorable conditions.

7.  On 5 August 1993, he received NJP under the provisions of Article 15, UCMJ, for wrongfully using cocaine between on or about 4 to 7July 1993.
8.  On 6 August 1993, he consulted with legal counsel and he waived his right to an administrative board and declined to submit a statement in his own behalf.

9.  On 20 August 1993, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense, with an under other than honorable conditions characterization of service.  On 9 September 1993, he was discharged accordingly.

10.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense, with an under other than honorable conditions characterization of service.  He completed 10 years, 4 months, and 14 days of net active service.

11.  There is no evidence in his records that shows he asked his chain of command for assistance in dealing with any family issues/problems.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

13.  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.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on two different occasions for the use of cocaine.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

3.  The evidence of record does not show, and the applicant has not provided any evidence that shows, he requested assistance from his chain of command in dealing with any family issues/problems.  However, even if that was the case, it does not mitigate the fact that he abused cocaine while on active duty.

4.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20120008783





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120008783



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1