IN THE CASE OF:
BOARD DATE: 20 February 2014
DOCKET NUMBER: AR20130010676
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 a fully honorable discharge.
2. The applicant states, in effect, that his discharge was unjust because he had a perfect record of service and was up for a recommendation for promotion to the pay grade of E-5. Additionally, he came up positive on urinalyses that were only 2 to 3 days apart. He volunteers at the Department of Veterans Affairs (VA) Center to help people in wheel chairs.
3. The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty) and a letter from the VA Center verifying his volunteer service.
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. After serving 3 years of prior active service, the applicant again enlisted in the Regular Army on 29 January 1987 for a period of 3 years and was assigned to Fort Ord, California.
3. On 16 September 1987, nonjudicial punishment (NJP) was imposed against the applicant for the wrongful use of cocaine.
4. In November 1987, the applicant was enrolled in Track I of the Alcohol and Drug Abuse Dependency (ADAD) Program.
5. On 23 May 1988, NJP was imposed against the applicant for the wrongful use of cocaine as detected by urinalyses on 14 April 1988 and 2 May 1988.
6. On 5 July 1988, the applicants commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14 for misconduct drug abuse.
7. The applicant waived his rights and elected not to submit a statement in his own behalf.
8. The entire chain of command recommended that the applicant be discharged under other than honorable conditions. The appropriate authority (a major general) approved the recommendation for discharge under other than honorable conditions on 23 July 1988.
9. On 3 August 1988, NJP was imposed against the applicant for the wrongful use of cocaine as detected by a urinalysis conducted on 15 June 1988.
10. However, for reasons not explained in the available records, the applicant was discharged under honorable conditions on 9 August 1988 under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct abuse of illegal drugs.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 14 establishes policy and procedures for separating personnel for misconduct. Specific categories include 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.
b. 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 and the narrative reason for separation were appropriate for the circumstances of his case.
3. The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating when compared to the serious and repeated nature of his multiple drug offenses during his short and otherwise undistinguished record of service.
4. Accordingly, the applicant's overall service simply did not rise to the level of a fully honorable 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) AR20130010676
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ABCMR Record of Proceedings (cont) AR20130010676
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