IN THE CASE OF:  

		BOARD DATE:   18 March 2014

		DOCKET NUMBER:  AR20130012972


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, in effect, an upgrade of his under honorable conditions (general) discharge.

2.  The applicant states he is a better person now; he is very outgoing and he gets along well with others.

3.  The applicant provides no additional evidence in support of his request.

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 on 13 October 1987.  He completed his initial entry training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  Upon the completion of his initial entry training, he was assigned to Battery A, 3rd Battalion, 82nd Field Artillery Regiment, 1st Cavalry Division, Fort Hood, TX.

3.  On or about 5 July 1988, his duty status changed from present for duty to absent without leave (AWOL).  He remained AWOL until he returned to his unit on or about 7 July 1988.  

4.  On 8 July 1988, he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for missing movement through neglect, on or about 5 July 1988.

5.  On 7 March 1989, he accepted NJP, under the provisions of Article 15 of the UCMJ, for wrongfully using cocaine, at an unknown location between 1 February and 3 February 1989, the use of which was detected through the biochemical testing of a urine sample provided to military authorities on 3 February 1989.

6.  On 17 April 1989, he accepted NJP, under the provisions of Article 15 of the UCMJ, for failing to go at the prescribed time to his appointed place of duty, on or about 13 April 1989.
 
7.  On 7 April 1989, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct – commission of a serious offense.  The reason for the proposed action was, specifically, missing movement and the use of an illegal drug (cocaine).  His commander informed him that he would recommend he receive an under honorable conditions (general) discharge.  On this same date, his immediate commander recommended his discharge under the provision of Army Regulation 635-200, chapter 14, by reason of misconduct.  

8.  On 10 April 1989, after consultation with counsel, the applicant acknowledged receipt of the notification memorandum.  He acknowledged he had been advised by counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 14, and its effect, of the rights available to him and of the effect of any action taken by him in waiving his rights. He further acknowledged his understanding that an under honorable conditions (general) discharge was the least favorable characterization of service he could receive.  He elected not to submit statements in his own behalf.

9.  On 16 May 1989, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense, and directed he receive a General Discharge Certificate.
10.  On 30 May 1989, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 1 year, 7 months, and 16 days of net active service, and he had         2 days of lost time.  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It further sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

   a. Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  The regulation in effect at the time stated individuals in pay grades below E-5 could be processed after a first drug offense and must have been processed for separation after a second offense.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

   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 have jeopardized his rights.  The evidence of record shows he consulted with counsel and he was advised of the basis for the separation action.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  A discharge may be upgraded by this Board if it determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, his discharge was proper and equitable and accurately reflects his overall record of service.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20130012972



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