BOARD DATE:	  17 December 2013

		DOCKET NUMBER:  AR20130006610 


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 discharge.

2.  The applicant states he had a drug problem and he has been clean for over 15 years.  He is now recovered.

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 enlisted in the Regular Army (RA) in pay grade E-1 on 4 June 1979.  He completed training and was awarded military occupational specialty 74C (record telecommunications center operator).  He was promoted to pay grade E-4 on 19 June 1981.  He served in Germany from 16 October 1979 through 7 January 1985.

3.  He was honorably discharged on 18 January 1982 for the purpose of immediate reenlistment.  He reenlisted in the RA on 19 January 1982.  

4.  He was promoted to pay grade E-5 on 3 April 1985.  He was honorably discharged on 3 April 1985 for the purpose of immediate reenlistment.  He reenlisted in the RA on 4 April 1985.  He served in Korea from 17 January 1988 through 12 January 1989.

5.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for the following:

   a.  12 April 1990 – for making and uttering bad checks between 6 and 30 January 1990 and 1 and 6 February 1990, failing to maintain sufficient funds in his bank account, and forging the signature of another Soldier on a loan application.  

   b.  22 October 1990 – for failing to go to his appointed place of duty on 20 and 21 September 1990 and stealing cigarettes from the main exchange.  
   
   c.  17 January 1991 – for stealing currency and willfully and wrongfully damaging a video game on 3 December 1990 and with intent to deceive altering an official document on 7 December 1990.  

   d.  4 March 1991 – for failing to go to his appointed place of duty on 22 February 1991.  His punishment included a suspended reduction to pay grade E-3 and 30 days of extra duty.  On 4 March 1991, the suspension of reduction to pay grade E-3 was vacated based a fraud offense that was pending investigation. 

   e.  17 April 1991 – for wrongfully using cocaine between 5 and 11 February 1991.  

6.  His service record contains an Additional Evidence of Misconduct memorandum, dated 30 April 1991, that stated:

   a.  Between 11 January and 11 February 1991, the applicant tested positive for the use of cocaine as determined by urinalysis testing.  On 22 February 1991, he failed to go to his appointed place duty without authority.  Furthermore, the applicant was presently pending investigation for allegedly committing fraud on 12 October 1990, 21 February 1991, and 28 April 1991.
   b.  In view of the additional acts of misconduct the applicant’s battalion commander recommended the applicant receive an under other than honorable conditions characterization of service.
   
7.  On 1 February 1991, the applicant’s company commander initiated action against the applicant to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), paragraph 14-12b(2), for Pattern of Misconduct.  He stated the reasons for the proposed actions were the applicant’s receipt of Article 15s for stealing currency and damaging property, altering an official document, failing to go to his appointed place of duty without authority, stealing cigarettes, making and uttering bad checks, and with intent to deceive signing an official document.  He advised the applicant of his rights and that he could receive an honorable, general, or under other than honorable conditions discharge.

8.  In February 1991, after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a less than honorable discharge and the results of the receipt of such a discharge. He waived his rights and elected not to submit a statement in his own behalf.    

9.  On 24 May 1991, the separation authority approved the applicant’s discharge and directed the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1.

10.  He was discharged accordingly in pay grade E-1 on 31 May 1991, under the provisions of Army Regulation 635-200, paragraph 14-12b(2), for Misconduct-Pattern of Misconduct.  He was credited with completing 9 years, 4 months, and 12 days of net active service and 2 years, 7 days, and 15 days of prior active service.  His service was characterized as under other than honorable conditions.

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

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  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 convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  Paragraph 14-12b(2) provides for the separation of Soldiers for discreditable conduct and conduct prejudicial to good orders and discipline including conduct violating the accepted standard of personal conduct found in the UCMJ.  The issuance of a discharge under other than other honorable conditions is normally considered appropriate.  
   
   c.  Paragraph 3-7a - 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 acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   d.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  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 applicant’s request for an upgrade of his discharge was carefully considered.  However, the evidence of record shows he was punished under Article 15 for various acts of misconduct to include wrongfully using cocaine during the period of his third reenlistment.  His company commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.  The separation authority approved his discharge and as a result, on 31 March 1991, he was discharged accordingly.

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service from as early as April 1990 below that meriting a fully honorable or a general discharge for the period of his third enlistment.

3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of 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)                                         AR20130006610





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ABCMR Record of Proceedings (cont)                                         AR20130006610



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