IN THE CASE OF:	  

		BOARD DATE:  29 January 2013

		DOCKET NUMBER:  AR20120013106 


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 under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  He states in effect:

   a.   He requested that the Army Discharge Review Board (ADRB) upgrade his discharge in 1997; however, he did not submit a compelling reason for such consideration and his request was denied.  Prior to making this request the Department of Veterans Affairs (VA) had advised him that a discharge upgrade may qualify him for a possible home loan.

   b.  Prior to enlisting in the Army he had never utilized any drugs, but more importantly he has never used drugs since being discharged.  He has moved on to lead a very productive life.  He has maintained steady employment and has been married over 25 years.

   c.  He enlisted in the Delayed Entry Program (DEP) on 12 March 1985 at 
age 20.  He proudly entered active duty on 27 March 1985 with the intention of making the Army his career.  He successfully completed the training requirements for a power generator equipment repairer.  He was transferred to Fort Ord, CA.  While working in his military occupational specialty (MOS) he was cross-trained as an automobile mechanic and he was assigned to the motor pool. He was rated above average and he was promoted to pay grade E-3 on 1 March 1986.  At that time, he was a happily married 22 year old private first class well on the way to achieving his goals in the pursuit of a career in the Army.  As a result, he reenlisted on 22 September 1987 (sic 28 February 1988).

   d.  After completing less than 1 year of his reenlistment obligation, at age 23, his whole world was turned upside down.  In May 1988, he failed a drug test; however, he had never used drugs prior to the incident nor has he used drugs since that time.  As a young Soldier, he allowed himself to be influenced by junior non-commissioned officers (NCO) in the unit who were using drugs.  In an attempt to fit in he became involved.  He fully understands that this in no way excuses his actions, but at the same time he was young and naïve.  He did not fully comprehend the ramifications of his actions.

   e.  As a consequence, on 9 May 1987, while in formation and in front of his entire unit he was reduced to pay grade E-1.  The humiliation and sense of shame was intense to say the least.  There was no drug counseling offered.  He felt alone and unsure of his future, but he continued to perform his duties within the motor pool for the next eight and one half months until he was discharged on 2 February 1989.

   f.  During this period, a female Judge Advocate General officer spoke with him, but she never offered him any options.  Her only question was, what did he want to do?  Being young, immature, and suffering from shame and humiliation all he could say was he wanted out of the Army.  As he looks back, he feels a certain amount of pride in the fact he completed his first enlistment period without incident.  If he had opted to not reenlist he would not be writing this letter because his character of service would be honorable.  Since his discharge, he has cleaned up his act.  He is asking that his service record not be a reflection of one stupid act on his part.

3.  He 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 record shows he enlisted in the DEP on 12 March 1985.  He enlisted in the Regular Army (RA), in pay grade E-1, on 27 March 1985, for 3 years.  At the time of enlistment, he was age 20 and 5 months.  He completed training and was awarded MOS 52D (Power Generator Equipment Repairer).  

3.  He was honorably discharged on 27 September 1987 for the purpose of immediate reenlistment.  He reenlisted in the RA in pay grade E-4 on 28 September 1987 for 3 years.  

4.  On 8 May 1988, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for the wrongful use of cocaine between 16 February and 16 March 1988.  His punishment included reduction to pay grade E-1.

5.  A Report of Mental Status Evaluation, dated 27 July 1988, shows his behavior was found to be normal.  He was fully alert, fully oriented, and had an unremarkable mood or affect.  His thinking process was clear, his though content was normal, and his memory was good.  He was psychiatrically cleared for administrative action deemed appropriate by the command.

6.  On 17 November 1988, the applicant’s company commander initiated action to separate the applicant under the provisions of Army Regulations 635-200 (Personnel Separations – Enlisted Separations), chapter 14, for commission of a serious offense.  The company commander lists the following as the specific reasons:

* on or about 8 May 1986, the applicant disobeyed a lawful order from an NCO
* on or about 18 August 1986, the applicant failed to report to his place of duty
* on or about 23 October 1986, the applicant was absent from formation
* between August and December 1986, the applicant missed Army Drug and Alcohol Program classes and failed to meet the Drug Track II standards
* on or about 12 December 1986, the applicant failed to pass the sit-up portion of the Army Physical Fitness Test
* between August and December 1986, the applicant failed to make payments as agreed to the Government and failed to make all payments to Credit Central Oakland
* on or about 11 and 12 May 1987, the applicant disobeyed a lawful order from a warrant officer
* on or about 20 August 1987 and on 2 November 1987, the applicant was late for duty
* on or about 19 November 1987, the applicant failed to pay the full amount agreed to Gran Tree Furniture
* on or about 25 January 1988 and on 6 and 8 February 1988, the applicant disobeyed a lawful order from an NCO
* on or about 12 February 1988, the applicant disobeyed a lawful command from a commissioned officer
* on or about 11, 16, and 18 May 1988 the applicant reported to work late
* on or about 25 May 1988, the applicant was asleep while on duty
* on or about 1 June 1988, the applicant was absent from company formation and failed to report for Staff Driver Duty
* on or about 9 June 1988, the applicant was late for the company’s physical training formation
* on or about 10 June 1988, the applicant was late for the company’s recall formation
* between on or about 16 February and 16 March 1988, the applicant wrongfully used cocaine

7.  The applicant’s company commander also stated the applicants’ conduct and duty performance were poor and average.  He recommended the applicant be separated with a UOTHC discharge.

8.  On 17 November 1988, after a counseling session the applicant acknowledged the proposed separation action.  He waived his rights and elected not to submit a statement in his own behalf.  He acknowledged he understood he was being considered for a UOTHC discharge.

9.  On 18 November 1988, the applicant’s battalion commander recommended approval of the applicant’s discharge with the issuance of a UOTHC discharge.

10.  The separation authority approved his discharge and he was discharged on 8 February 1989, under the provision of Army Regulation 635-200, paragraph  14-12c, for Misconduct – Abuse of Illegal Drugs, in pay grade E-1.  His service was characterized as UOTHC.  He was credited with completing 3 years, 10 months, and 12 days of net active service and no time lost.

11.  On 13 December 1996, the ADRB denied his request for an upgrade of the characterization of his service.  However, the ADRB changed his reason for discharge to Misconduct, Army Regulation 635-300, paragraph 14-12c(2).  He was issued a new DD Form 214 (Certificate of Release or Discharge from Active Duty).

12.  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.

13.  Paragraph 14-12c 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 UOTHC was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge were merited by the Soldier's overall record.

14.  Army Regulation 635-200, paragraph 3-7a, further stated an honorable discharge was a separation with honor.  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 inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was 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 shows the applicant was punished under Article 15 for the wrongful use of cocaine which resulted in his reduction to pay grade E-1.  His company commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c for that action and several acts of misconduct occurring between February 1986 through June 1988.  After consulting with counsel, he acknowledged the proposed action, waived his rights, and elected not to submit a statement in his own behalf.  He also acknowledged he understood he could be issued a UOTHC discharge.
2.  His contention that his youth made him do the wrong thing and impacted his ability to serve successfully is without merit.  At the time of his enlistment he was 20 years and 5 months of age.  At the time of his misuse of drugs he was age 23. There is no evidence he was any less mature than other Soldiers of the same age who served successfully and completed their term of service.  

3.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is believed that the reason for discharge and the characterization of service were both proper and equitable.  Therefore, he was properly discharged in accordance with pertinent regulations with due process.

4.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and he also has not provided evidence sufficient to mitigate the character of his service.  His military records contain no evidence which would entitle him to an upgrade of his discharge.  His misconduct diminished the quality of his service below that meriting 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)                                         AR20120013106



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ABCMR Record of Proceedings (cont)                                         AR20120013106



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