IN THE CASE OF:	  

		BOARD DATE:	  20 June 2013

		DOCKET NUMBER:  AR20120020800 


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, "apart from one isolated incident, my service in the Army was honorable in distinction.  I enjoyed the Army and received awards and achievements."

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a DA Form 4187 (Personnel Action), and a certificate.

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 27 November 1987 and he held military occupational specialty 72E (Tactical Telecommunication Center Operator).  On 19 May 1988, he was assigned to the 176th Signal Company, 29th Signal Battalion, Fort Lewis, WA.

3.  He was counseled by various members of his chain of command as follows on:

* 13 June 1988, for failing to properly secure high dollar value items in violation of military regulations
* 17 June 1988, for being barred from the Fort Lewis Club System for a period of 90 days as a result of consuming alcoholic beverages while under the age of 21
* 11 January 1989, for writing a check without maintaining sufficient funds in his checking account

4.  Each time he was counseled, he was advised that further misconduct could result in his separation for unsatisfactory performance or misconduct under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), or he could be processed for disciplinary action under the Uniform Code of Military Justice (UCMJ).

5.  On 1 April 1990, he was promoted to the rank/grade of specialist/E-4.

6.  On 25 May 1989, he received nonjudicial (NJP) under the provisions of Article 15, UCMJ, for wrongfully having a blood alcohol level of .05 percent or above while on duty.  

7.  On 7 June 1989, he was counseled by his platoon sergeant for writing a check without maintaining sufficient funds in his checking account.  

8.  On 4 January 1990, he received NJP under the provisions of Article 15, UCMJ, for:

* failing to go at the appointed time to his place of duty
* wrongfully using cocaine between 1 and 3 November 1989 

9.  On 22 January 1990, he was notified by his immediate commander of the commander's intent to initiate separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c(2), for misconduct - abuse of illegal drugs.  The commander stated he was recommending he receive an under other than honorable conditions discharge.  

10.  On 22 January 1990, the applicant acknowledged receipt of the proposed discharge action and he consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and that if he were issued an under other than honorable conditions discharge he could expect to encounter substantial prejudice in civilian life.  

11.  In a statement the applicant submitted in his own behalf, dated 23 January 1990, he indicated he was being released from the Army based on a positive urinalysis but he believed his problem with substance abuse should not constitute his separation with an under other than honorable conditions discharge, it should be better because he had actively participated in several field problems and command inspections.  In addition, he worked as an assistant repair and utilities specialist and he kept the company area working and looking good.

12.  On 5 February 1990, his senior commander recommended approval of his separation action with a general discharge.

13.  On 14 February 1990, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph
14-12c(2), for misconduct - abuse of illegal drugs with the issuance of a General Discharge Certificate.  On 27 February 1990, he was discharged accordingly.

14.  The DD Form 214 he was issued confirms he was discharged in the rank of PV1, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - abuse of illegal drugs with an under honorable conditions characterization of service.  He completed 2 years, 3 months, and 1 day of net active service.

15.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  The applicant provides a certificate of achievement, dated 8 November 1988, which he received for outstanding performance during a 29th Signal Battalion exercise from 16 to 26 August 1988.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, in effect at the time, 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, to include abuse of illegal drugs, and convictions by civil authorities.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such was merited by the Soldier's overall record.  

18.  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 evidence of record confirms the applicant was counseled on several occasions for failing to secure high value items, drinking while underage, and writing bad checks.  In addition, he received NJP on one occasion for having a blood alcohol level of .05 percent or above while on duty, and on a second occasion for failing to report and wrongfully using 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.  It appears the separation authority favorably considered his request for a "better characterization of his service" when he was separated with a general discharge vice an under other than honorable conditions discharge.

3.  Based on his overall record, it is clear the applicant's service did not meet the standards of acceptable conduct for Army personnel that would warrant an honorable discharge.  Therefore, he is not entitled to the requested relief.

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)                                         AR20120020800



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ABCMR Record of Proceedings (cont)                                         AR20120020800



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