IN THE CASE OF:	  

		BOARD DATE:	  27 February 2014

		DOCKET NUMBER:  AR20130011612 


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 (UOTHC) discharge to an honorable discharge (HD).

2.  He states:

	a.  He believes the quality of his service in its totality and his commitment to the U.S. Army was honorable.  He used poor judgment 24 years ago and it cost him his career.  He has been a model citizen and productive member of society since this setback.  He has remained gainfully employed with the same company for 15 years and in the same industry for over 20 years, and he has attained supervisory and managerial positions.

	b.  He received an HD prior to reenlisting in 1988.  As a recently-divorced 24 year old, he made a poor decision in taking on a roommate to help with rent which later became the worst decision of his life and career.  The roommate introduced him to an environment that quickly spiraled out of control and led to the end of his military career.  Up to that point, he was doing well, having been promoted to sergeant (SGT)/E-5 in 2 years and being selected for promotion to staff sergeant (SSG)/E-6 shortly after.  He was progressing at an accelerated rate with an unblemished record.

	c.  He takes full responsibility for his actions and the choices he made that led to the end of his military career.  He has paid the price, served his penalty, and managed to pick himself up to become a successful and productive member of society.  
	d.  The Disabled American Veterans team submitted a request on his behalf in 1993.  He has recently been made aware that the request is not on file.  He has enclosed documents from the original request.

3.  He provides:

* self-authored statement
* DD Form 149 (Application for Correction of Military Record), dated 3 September 1993, and associated documents
* various documents pertaining to his military training, qualifications, achievements, promotions, and awards
* résumé 
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Honorable Discharge Certificate, dated 11 April 1988
* DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report (NCOER))
* various documents pertaining to training and achievements in his civilian occupation
* letters commending his performance in his civilian occupation
* High School Permanent Record Card

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 16 February 1984, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 77F (Petroleum Supply Specialist).  

3.  On 19 September 1986, orders were issued promoting him to SGT/E-5 effective 1 October 1986 with a date of rank of 25 September 1986.

4.  On 11 April 1988, he was honorably discharged to reenlist, which he did the following day.

5.  His record contains DA Forms 4856 (General Counseling Form) showing he was counseled on:

* 17 July 1989 for not informing his chain of command of his whereabouts
* 28 August 1989 for having written checks that were returned for insufficient funds on five occasions in July and August 1989

6.  His record contains a partial copy of a memorandum, subject:  (U.S. Army Criminal Investigation Command (CID)) Report of Investigation - Collateral - 1067-89-CID034-XXXXX-XXXXX, dated 11 September 1989.  The memorandum shows the applicant and another NCO in his unit were arrested by civil authorities on or about 9 August 1989 for wrongful possession of cocaine at their residence.  

7.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record) shows he was confined by civil authorities from 10 through 16 August 1989.

8.  On 5 January 1990, pursuant to his guilty plea to the charge of possession of cocaine and a waiver of his right to trial by jury, the 264th District Court of Bell County, TX, deferred further proceedings without entering an adjudication of guilt and placed him on probation for a period of 6 years.  

9.  On 21 February 1990, he acknowledged notification of his commander's intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct.  His commander stated the reasons for the proposed action were the applicant's civilian conviction for cocaine possession, uttering worthless checks in July and August 1989, and failure to repair in July 1989.  His commander informed him that he was recommending the issuance of an "other than honorable" discharge.

10.  On 5 March 1990, he was advised by counsel of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of those rights.

11.  After consulting with counsel, he requested consideration of his case by an administrative separation board and a personal appearance before an administrative separation board.  He invoked his right to have a minority group member sit on the board and his right to representation by counsel.  He elected not to submit statements in his own behalf.  
12.  He acknowledged he understood that an other than honorable discharge was the least favorable characterization of service he could receive and that he could expect to encounter substantial prejudice in civilian life if a general discharge (GD) or UOTHC discharge were to be issued to him.  

13.  He acknowledged he understood that, as the result of issuance of a UOTHC discharge, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

14.  On 20 March 1990, he submitted a request for a conditional waiver of his right to consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than honorable or general.  He indicated that, if his request for a conditional waiver was disapproved, he wanted to continue with the administrative separation board process.

15.  On 2 April 1990, the separation authority disapproved the applicant's request for a conditional waiver and directed his case be considered by a board.

16.  On 13 April 1990, he was again advised by counsel of the basis for his contemplated separation and his rights.  He confirmed his previous elections with regard to his rights.

17.  The applicant's administrative separation board proceedings and decision are not available for review.

18.  On 18 April 1990, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, and directed he be given a UOTHC discharge.  

19.  On 2 May 1990, he was discharged in accordance with the separation authority's decision.

20.  On 19 February 1997, the President, Army Discharge Review Board, informed him that his request for a change in the character of and/or reason for his discharge had been denied.

21.  He provides several documents in support of his request, including the following:

	a.  A DD Form 149, dated 3 September 1993, which indicates he intended to apply to the ABCMR for an upgrade of his discharge.  Attached documents included letters of support that commended the applicant's character and stated he had been making efforts to improve himself.  One letter describes the applicant's difficult family history and his emulation of the lifestyles of his self-destructive peers while serving in the Army that resulted in the adversity he faced. 

	b.  Various documents pertaining to his military training show, in part –

* he was awarded the Army Good Conduct Medal for the period 16 February 1984 to 15 February 1987
* he received a Certificate of Achievement on 7 February 1996 for his exceptionally meritorious performance throughout Reforger 1986
* he completed the Primary Leadership Development Course on 6 March 1987
* he received a Certificate of Achievement on 12 November 1987 for his outstanding performance of duty in the month of September 1987 during Reforger 1987
* he was awarded the Army Achievement Medal for meritorious achievement from 7 to 28 April 1988

	c.  Various documents pertaining to training and achievements in his civilian occupation show, in effect, he has performed at a high level in his civilian occupation since 1994.  

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.  A UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.
   
	b.  Paragraph 3-7a provides that an HD 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.

	c.  Paragraph 3-7b provides that a GD is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an HD.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for an upgrade of his UOTHC discharge to an HD.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with the applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  The record supports the reason and authority for discharge shown on his DD Form 214.

3.  His post-service achievements and conduct are noted; however, these are not normally a sufficient basis for changing a properly-completed discharge.

4.  The applicant pled guilty to possession of cocaine.  This record of indiscipline is a significant breach of the conduct expected of an NCO; therefore, his service subsequent to his reenlistment clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD or an HD.

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)                                         AR20130011612



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ABCMR Record of Proceedings (cont)                                         AR20130011612



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