IN THE CASE OF:	  

		BOARD DATE:	  25 March 2014

		DOCKET NUMBER:  AR20130012977 


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 and a change of the reason for his separation from drug abuse.

2.  The applicant states he tested positive one time, was reduced to specialist four, and discharged.  After twenty years, his discharge has cost him jobs with three different companies.  He is a college graduate.  He has a clean military record and the offense was a one-time occurrence.  This mistake cost him his military career and attempts to obtain employment as a civilian.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 30 January 1984 and he held military occupational specialty 72E (combat telecommunications center operator). He served in Germany from 9 September 1984 through 24 November 1987.  He was promoted to pay grade E-5 on 5 May 1988.

3.  On 6 July 1989, the applicant's company commander initiated a bar to reenlistment against the applicant for the wrongful use/possession of cocaine.

4.  On 7 July 1989, he was enrolled in the Alcohol and Drug Abuse Prevention and Control Program.

5.  On 24 July 1989, the bar to reenlistment was approved.

6.  On 27 July 1989, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongfully using cocaine on or about 9 June 1989.  He elected to appeal.

7.  On 8 August 1989, his appeal of the Article 15 was denied.

8.  On 22 September 1989, the applicant’s company commander initiated action against the applicant to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), paragraph 14-2c, for commission of a serious offense, wrongful use of a controlled substance – cocaine, with a general discharge.  He advised the applicant of his rights.

9.  On 26 September 1989, after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a discharge under other than honorable condition 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.    

10.  On 20 October 1989, the applicant's company and battalion commanders recommended the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general discharge.

11.  On 26 October 1989, the separation authority approved the applicant’s discharge and directed the issuance of a general discharge.

12.  He was discharged accordingly in pay grade E-4 on 17 November 1989.  He completed 5 years, 9 months, and 18 days of net active service.  His DD Form 214 lists in:
* Item 25 (Separation Authority) – Army Regulation 635-200, paragraph    14-12c
* Item 28 (Narrative Reason for Separation) – Misconduct-Drug Abuse

13.  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.

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

   a.  Paragraph 14-12c(2) – Soldiers would be separated for the commission of a serious offense such as the abuse of illegal drugs.  It provided that individuals identified as first time drug abusers, grades E-5 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.  The separation reason in all separations authorized by that paragraph would be "misconduct-drug abuse or abuse of illegal drugs."

   b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant committed a serious offense in that he tested positive for the use of cocaine.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  An honorable characterization is appropriate when the quality of a Soldier'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.  It appears that based on his overall record it was directed he receive a general discharge, as the characterization of service for this type of discharge was normally under other than honorable conditions.


3.  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 below that meriting a fully honorable discharge.

4.  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.

5.  In accordance with regulatory guidance, item 28 of his DD Form 214 lists the appropriate separation reason authorized for all separations under Army Regulation 635-200, paragraph 14-12c.  Therefore, he is not entitled to a change of the reason for his separation.

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)                                         AR20130012977





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ABCMR Record of Proceedings (cont)                                         AR20130012977



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