IN THE CASE OF:	  

		BOARD DATE:	  25 April 2013

		DOCKET NUMBER:  AR20120018501 


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 that his general discharge be upgraded to an honorable discharge and that the charges against him be removed from his records. 

2.  The applicant states that the charge against him was invalid and mishandled and he should not have to live a lifetime with the charges against him.  He also states that he has been a model citizen for 25 years, he reenlisted twice and was promoted after charges were preferred against him.

3.  The applicant provides no supporting documents with his application.

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 on 27 December 1977 for a period of 3 years.  He completed his one-station unit training as a multi-channel equipment operator at Fort Gordon, Georgia and was transferred to Germany on 26 May 1978.  

3.  He was advanced to the pay grade of E-4 on 1 August 1979 and reenlisted on 20 October 1980 for a period of 3 years and assignment to Fort Bragg, North Carolina.  He again reenlisted on 30 September 1983.

4.  On 30 November 1983, the applicant’s Class VI privileges were withdrawn.

5.  On 1 December 1983, the applicant received a Letter of Reprimand for being denied entrance to the Basic Noncommissioned Officer Development Course due to arriving at the course in an intoxicated state.

6.  On 4 January 1985, he was promoted to the rank of Sergeant, E-5.

7.  On 23 January 1985, the applicant tested positive for THC (marijuana) during a urinalysis.  Nonjudicial punishment was imposed against him on 13 March 1985.

8.  On 24 January 1986, he was dismissed from the Noncommissioned Officer (NCO) Academy Primary Leadership Development Course (PLDC) due to a lack of motivation.

9.  On 15 April 1986, his commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, due to commission of a serious offense.  He cited as the basis for his recommendation the applicant’s:

* Loss of Class VI privileges for abuse of alcohol
* Reprimand for intoxication, immaturity, and failure to be accepted into the basic NCO course
* Attitude, military bearing, apathy, intoxicated on duty, over-stamped ID Card, dismissal from PLDC, failure to prepare for field duty, poor duty performance, and failure to repair 
* Positive urinalysis
* Failure to obey a lawful order

10.  On 21 April 1986, after consulting with counsel, the applicant elected to appear before an administrative separation board and he declined the opportunity to submit a statement in his own behalf.

11.  The applicant appeared before an administrative separation board on         21 May 1986 represented by counsel from the trial defense service.  The applicant elected not to testify at the hearing.  After hearing testimony from the applicant’s chain of command, the board determined that the applicant was undesirable for further retention in the service due to a pattern of misconduct and commission of a serious offense.  The board recommended that he be issued a General Discharge Certificate.

12.  The appropriate authority approved the findings and recommendation of the administrative separation board on 12 June 1986 and directed that he be issued a General Discharge Certificate.

13.  Accordingly, he was discharged under honorable conditions on 18 July 1986 under the provisions of Army Regulation 635-200, chapter 14, due to misconduct – drug abuse.  He had served 8 year, 6 months, and 22 days of active service and his only individual award was one award of the Army Good Conduct Medal.

14.  There is no evidence in his official records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the characterization of his service was appropriate for the circumstances of his case.

3.   The applicant’s contentions have been noted; however, they are not sufficiently mitigating when compared to the serious nature of his offense.  The applicant’s repeated misconduct violated the trust placed in him as noncommissioned officer and therefore his service simply does not rise to the level of a fully honorable discharge.

4.  Additionally, the applicant has provided no evidence to substantiate his claim that the charge of drug abuse was invalid or that his case was mishandled. 

5.  Accordingly, there appears to be no basis to upgrade 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)                                         AR20120018501





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ABCMR Record of Proceedings (cont)                                         AR20120018501



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