IN THE CASE OF

		BOARD DATE:	    17 April 2014

		DOCKET NUMBER:  AR20130013450 


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 discharge under other than honorable conditions.

2.  The applicant states:

* he made a mistake and instead of learning from it, he made other mistakes leading to his ultimate discharge
* prior to his mistake, he was up for promotion and he had hopes of making the military a career
* he was a noncommissioned officer (NCO) in charge of escorting five other Soldiers to a urinalysis; one Soldier refused to come
* he (the applicant) volunteered to be the fifth Soldier although his name was not on the list and his urine sample tested positive
* he was reduced in rank - a shocking event to him; he asked others for support but no one would support him; he decided to show the Army who was boss
* he was young and immature; he made mistakes that he now regrets
* he has matured and made great improvements in his life by going to college and working in various job or volunteering in various functions

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Two letters of support
* Certificate of completion
* Page 3 of his 4-page DA Form 2-1 (Personnel Qualification Record - Part II)
* Certificate of achievement
* Letter from the Department of Veterans Affairs (VA)

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's records show he was born in January 1959 and he enlisted in the Regular Army at nearly 21 years of age on 3 January 1980.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 19E (Armor Crewman).  

3.  He served in Germany from 11 June 1980 to 3 June 1983.  He reenlisted on 27 October 1983.  He was awarded or authorized the Army Good Conduct Medal, NCO Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, and Sharpshooter Marksmanship Qualification Badge with Pistol Bar. 

4.  He was promoted to specialist four (SP4)/E-4 on 1 August 1981 and to specialist five (SP5)/E-5 on 3 November 1983.  

5.  On 26 November 1984, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine.  

6.  On 10 December 1984, he was reported in an absent without leave (AWOL) status; however, he returned to military control on 11 December 1984. 

7.  On 14 December 1984, he accepted NJP under the provisions of Article 15 of the UCMJ for twice failing to go at the time prescribed to his appointed place of duty (one of which was to his Drug and Alcohol appointment).  
8.  The applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) by reason of misconduct - commission of a serious offense (positive urinalysis).  He recommended an under other than honorable conditions discharge.

9.  On 17 December 1984, the applicant acknowledged receipt of the separation memorandum.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation for misconduct - commission of a serious offense, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of a discharge under other than honorable conditions, and of the procedures/rights available to him.  He waived consideration of his case by an administrative separation board and/or personal appearance before an administrative separation board.  He also elected not to submit a statement.  He further acknowledged he understood:

	a.  he could encounter substantial prejudice in civilian life in the event that an under other than honorable conditions discharge was issued to him; and 

	b.  as a result of the issuance of an under other than honorable conditions discharge, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could encounter substantial prejudice in civilian life.

10.  Subsequent to this acknowledgement and consult with counsel, his immediate commander initiated separation action against him by reason of misconduct - commission of a serious offense. 

11.  On 30 January 1985, the separation authority approved the applicant's discharge under other than honorable conditions under the provisions of Army Regulation 635-200 for misconduct - commission of a serious offense, and reduced to the lowest enlisted grade.  The applicant was accordingly discharged on 11 February 1985.  He completed a total of 5 years, 1 month, and 8 days of creditable active service and he had one day of lost time.

12.  On 3 January 1996, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  Accordingly, the ADRB denied his request for a change to the characterization of service. 

13.  He provides a certificate of completion, dated 12 February 1982, for successful completion of the Nuclear, Biological, and Chemical Defense Officer/NCO Course, and a letter, dated 26 August 2013, from the VA in relation to his history of coronary heart disease.   He also provides: 
	a.  A letter, dated 17 July 2013, from an individual who has known the applicant for 30 years.  He describes him as an organized, efficient, competent, and friendly person.  He supports his efforts to upgrade the discharge action. 

	b.  A letter, dated 8 July 2013, from an individual who has known the applicant for 40 years and describes him as a responsible and a hardworking man.  He is also dependable, dedicated, courteous, respectful, and peace loving. 

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

	a.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct for commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  

	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.

	c.  Paragraph 3-7b provides that a general discharge 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 honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he committed a serious offense in that he abused illegal drugs.  As a result, his commander initiated separation action against him and notified him of this action.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

2.  The applicant was nearly 21 years of age when he enlisted in the RA and 23 years of age when he reenlisted.  He also held an NCO grade.  However, there is no evidence he was any less mature than other Soldiers who successfully completed their term of service. 

3.  His actions at the time clearly brought discredit upon himself and the Army.  Additionally, his service was marred by misconduct as evidenced by two instances of NJP and his lost time.  Based on his record of misconduct his service was unsatisfactory.  Therefore, he is not entitled to an upgrade of 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 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)                                         AR20130013450





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ABCMR Record of Proceedings (cont)                                         AR20130013450



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