IN THE CASE OF:	  

		BOARD DATE:  12 February 2014

		DOCKET NUMBER:  AR20130008901 


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 under honorable conditions to an honorable discharge.

2.  The applicant states he needs an upgrade for retirement purposes.  Due to his mental state of mind at that time, he used a mind-altering substance.  He is currently clean and has been for quite some time. 

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.  On 18 September 1979, he enlisted in the Regular Army for 3 years.  He extended his enlistment for 22 months on 19 January 1982 and for 12 months on 10 January 1984.  He was promoted to specialist five/E-5 on 1 May 1985.

3.  On 14 May 1985, he immediately reenlisted for 6 years.  On 1 October 1985, he was laterally appointed to sergeant/E-5 coincident with the elimination of the specialist five rank.

4.  On 1 October 1986, he was formally counseled by a captain concerning his:

* lack of motivation or initiative in keeping the administrative section running on a timely, efficient basis
* habitual lateness
* need to begin acting more responsibly as the section supervisor

5.  On 22 October 1986, he was formally counseled by a first lieutenant for his:

* appearance of malingering
* failure to set a good example for his subordinates

6.  On 28 October 1986, he was formally counseled by a first lieutenant for his:

* failure to arrive on time
* failure to accomplish his assigned duties

7.  On 27 February 1987, he was formally counseled by a sergeant first class for his unsatisfactory performance and/or misconduct that could result in his administrative elimination from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 or 14.

	a.  He was advised that if he was separated under the provisions of 
chapter 13 for unsatisfactory performance he could receive a general discharge under honorable conditions.  This discharge could make it difficult to find civilian employment.

	b.  He was advised that if he was separated under the provisions of 
chapter 14 he could receive a discharge under other than honorable conditions.  This discharge could result in loss of veterans' benefits.

	c.  Specific deficiencies that he was being counseled for included:

* five worthless checks totaling $868.00 at the Henderson Hall Marine Exchange
* poor judgment and lack of concern for his personal affairs by failing to make a scheduled payment 
* a worthless check for $150.00 at the Bolling Air Force Base Exchange
* withholding pertinent information when asked about other checks which might be returned due to insufficient funds

8.  On 31 July 1987, he accepted nonjudicial punishment (NJP) for knowingly and wrongfully using some amount of cocaine as determined by urinalysis.

9.  On 11 September 1987, his commander notified him that he was initiating action to discharge him under the provisions of chapter 14 of Army Regulation 635-200 for a pattern of misconduct.  The commander further notified the applicant he was recommending that he receive a characterization of under other than honorable conditions.

10.  The commander advised the applicant of his right to:

* submit statements in his own behalf
* obtain copies of documents that would be sent to the separation authority supporting his proposed separation action
* consult with counsel and/or civilian counsel at no expense to the Government within a reasonable time period
* have his case heard before an administrative separation board
* appear before an administrative separation board
* execute a conditional waiver of rights to an administrative separation board providing that the characterization of service proposed is general under honorable conditions or under other than honorable conditions
* waive any of these rights in writing 
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

11.  On 14 September 1987 after consulting with counsel, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of chapter 14 of Army Regulation 635-200 for a pattern of misconduct.  He stated he:

* requested consideration of his case by an administrative separation board
* had been advised of his right to submit a conditional waiver of his right to have his case considered by an administrative separation board
* requested a personal appearance before an administrative board
* would submit statements in his own behalf
* could, up until the date the separation authority orders, directs, or approves his separation, withdraw the waiver of any of the above rights and request that an administrative separation board hear his case
* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him

12.  On 15 September 1987, his commander recommended his separation from the Army prior to the expiration of his term of service by reason of a pattern of misconduct.  He recommended a characterization of service as under other than honorable conditions.  The reasons for the proposed action were the applicant's:

	a.  use of cocaine as determined by urinalysis;

	b.  formal counseling required on 1, 22, and 28 October 1986 and 
20 February 1987;

	c.  being relieved of his duties as the administrative noncommissioned officer resulting from his listing as a subject of larceny when he failed to purchase a gift for which he had collected funds from other Soldiers in his section; and

	d.  receiving NJP on 31 July 1987 for positive results of a urinalysis for cocaine on 8 June 1987.

13.  On 10 November 1987 after being afforded the opportunity to consult with counsel and to consider whether to submit a conditional waiver, the applicant voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service or description of separation no less favorable than under honorable conditions – otherwise referred to as a general discharge.  He stated he:

	a.  was making a statement in his own behalf;

	b.  was making this request of his own free will and was not subjected to any coercion whatsoever by any person;

	c.  understood he could withdraw this waiver and request that an administrative separation board hear his case until the date the separation authority ordered, directed, or approved his separation; and

	d.  understood if the separation authority refused to accept this conditional waiver of a hearing before an administrative separation board that his case would be referred to an administrative separation board.  In that case, he:
		(1)  requested a personal appearance before an administrative separation board;

		(2)  requested representation by Captain L____ as his military counsel; and

		(3)  understood his willful failure to appear before the administrative separation board by absenting himself without leave would constitute a waiver of his rights to a personal appearance before the board.

14.  The applicant submitted a statement, dated 10 November 1987, in which he stated:

	a.  During the past 8 years he had given his all to the U.S. Army.  He tried his best to develop his skills in a manner that would better serve others.  He tried his best to train or give guidance to every Soldier he came into contact with.  He spent a great amount of time with youth activities all during his career.

	b.  The death of his father in March 1987 and the severe hardships he went through prior to his death had a tremendous effect on him.  He had been in a state of mind for the past 6 or 7 months that was totally out of character because he had a burning instinct inside him that told him there was something wrong about his father's death, foul play.

	c.  He had a marital problem in addition to keeping bad company that increased the chances for him to use cocaine.  He realized the mistakes he made and had been using all the resources available to him to take control of his problems.

	d.  The larceny referred to in his elimination package concerns $23.00 collected for a gift for a specialist's new baby.  He procrastinated in buying the gift  because the gift he planned to buy far exceeded the amount he had collected.  He planned to make up the difference to purchase the gift.  He kept this money set aside at all times.

15.  On 1 December 1987, the appropriate authority approved the applicant's request for a conditional waiver of rights for consideration of his case before an administrative separation board.  The separation authority directed the applicant's discharge for a pattern of misconduct and the issuance of a General Discharge Certificate.

16.  On 4 December 1987, he was discharged under honorable conditions.  He completed a total of 8 years, 2 months, and 17 days of active service.

17.  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.

18.  Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 14 in effect at the time dealt with separation for various types of misconduct.  Paragraph 14-12b provided for the separation of a Soldier due to a pattern of misconduct.  This included discreditable conduct and conduct prejudicial to good order and discipline including conduct in violation of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, civil law, and time-honored customs and traditions of the Army.  The issuance of a discharge under other than honorable conditions was normally considered appropriate for separations under the provisions of chapter 14.

	b.  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.  He had completed 5 years, 7 months, and 27 days of active service in the Regular Army when he reenlisted.  He had been promoted to specialist five/E-5 on 1 May 1985 and he was laterally appointed to sergeant/E-5 on 1 October 1985.  Therefore, he was well aware of the standards of acceptable conduct and performance of duty expected of Army personnel.

2.  The records of counseling show he required constant counseling concerning the performance of his duties and fulfilling his responsibilities as a supervisor.

3.  In promoting the applicant to sergeant, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  As a sergeant, the applicant was in a position of trust and responsibility, and he was responsible for the welfare of those assigned under him.  His records of counseling and his NJP for cocaine use clearly show the applicant violated this special trust and confidence.

4.  In view of the above, he clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  It is clear his previous service and his statement submitted with his request for a conditional waiver of his rights were considered in that he received a general discharge under honorable conditions rather than a discharge under other than honorable conditions which is normally considered appropriate in chapter 14 separations.

6.  He was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

7.  In view of the above, there is an insufficient 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 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)                                         AR20130008901



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ABCMR Record of Proceedings (cont)                                         AR20130008901



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