IN THE CASE OF: 

		BOARD DATE:	    8 May 2014

		DOCKET NUMBER:  AR20130015952 


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 his under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect:

	a.  At the time, he did not know he was a sick person, he was doing illegal drugs, and he needed help.  He has grown since the bad decision that he made back then.  He went to a drug rehabilitation center and raised a family.  Three of his children served in the U.S. Air Force, and he has worked for the Department of Defense (DOD) for almost 6 years supporting our Warfighters in Iraq, Afghanistan, and Kuwait.  

	b.  He has gone in harms way on many missions and would do it again.  He spent 18 months on missions in support of the 101st and 82nd Airborne Division and took pride in the Warfighters as if they were his own children.  He was diagnosed with acute post-traumatic stress syndrome (PTSD) himself.  He made a mistake when he was serving on active duty and he has corrected that mistake.

3.  The applicant provides five certificates, a résumé, four photographs, two memoranda, and an email.





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 16 August 1978.  He served through several enlistments and/or extensions and he attained the rank/grade of staff sergeant (SSG)/E-6 on 10 May 1986.

3.  On 5 August 1987, he was assigned to the 610th Ordnance Battalion, Fort Belvoir, VA. 

4.  On 14 December 1988, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using cocaine between 1 and 8 November 1998.  The punishment imposed included reduction to sergeant (SGT)/E-5.

5.  On 26 January 1989, he was counseled by his immediate commander that a Department of the Army-Imposed Bar to Reenlistment had been placed against him under the Qualitative Management Program.  He was advised of his options and his rights.

6.  On 31 January 1989, he received NJP under the provisions of Article 15, UCMJ, for being absent without leave (AWOL) from his assigned unit from 18 to 23 January 1989; the punishment imposed included reduction to specialist (SPC)/E-4.

7.  On 2 February 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), paragraph 14-12d for misconduct, the use of illegal drugs.  Specifically, he cited the applicant's NJP for the use of cocaine and stated at the time of the offense the applicant was an 
E-6 and in accordance with the regulation, first time drug offenders in the grades of E-5 through E-9 would be processed for separation.  
8.  On 2 February 1989, he acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  He waived consideration of his case by an administrative separation board on the condition he received no less than a general discharge.  His conditional waiver was subsequently denied.

9.  On 1 March 1989, he was notified that a board of officers would convene to determine if he should be retained in the service or discharged for the wrongful use of cocaine.

10.  On 3 March 1989, he received NJP under the provisions of Article 15, UCMJ, for wrongfully using cocaine between 16 and 23 January 1989; the punishment imposed included reduction to private (PVT)/E-1

11.  On 7 March 1989, he again consulted with legal counsel.  He was advised of the procedures and rights available to him.  He waived consideration to have his case heard before an administrative separation board and declined to submit a statement in his own behalf.  

12.  On 9 March 1989, the separation authority approved the waiver and directed the applicant be discharged with an under other than honorable conditions discharge.  On 17 March 1989, he was discharged accordingly.

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12d, by reason of misconduct - abuse of illegal drugs, with an under other than honorable conditions characterization of service.  

14.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs.  



16.  Paragraph 14-12d of the regulation provided for the separation of Soldiers for 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.  

17.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitled 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 was otherwise so meritorious that any other characterization would be clearly inappropriate.  

18.  Army Regulation 635-200, 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 evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on two occasions for using cocaine, and on another occasion for being AWOL.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

3.  Although his post-service conduct may be noteworthy, it does not negate the fact that he used illegal drugs during his military service.  

4.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20130015952



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ABCMR Record of Proceedings (cont)                                         AR20130015952



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