BOARD DATE:	  9 September 2014

		DOCKET NUMBER:  AR20140000305 


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 to a general discharge.

2.  The applicant states:

* he is proud of his Army service and still considers it a privilege to have served his country
* his record was good until after he returned from the Gulf War when he was introduced to drugs
* he would like his service to be judged on the overall time he spent in the Army, rather than his mistakes near the end
* he has been a solid citizen since his discharge and he would like to clear his record 

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 1 December 1989 for a period of 4 years.  He completed his training and was awarded military occupational specialty 88H (cargo specialist).

3.  In December 1991, nonjudicial punishment (NJP) was imposed against him for using cocaine.

4.  In May 1992, a bar to reenlistment was imposed against him.

5.  On 19 August 1992, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct (abuse of illegal drugs).  The unit commander cited:

* he received NJP for cocaine use
* he tested positive again for cocaine use in April 1992
* he has shown that he is a substandard Soldier who cannot conform to basic military standards

6.  On 19 August 1992, he consulted with counsel and he was advised of the impact of the discharge action.  He requested consideration of his case by an administrative board.

7.  On 4 November 1992, a board of officers convened.  The board found him undesirable for further retention in military service due to the commission of a serious offense and recommended his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (abuse of illegal drugs).

8.  On 14 December 1992, the separation authority approved the recommendation for discharge and directed he receive a discharge under other than honorable conditions.

9.  On 19 January 1993, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (abuse of illegal drugs).  He completed a total of 3 years, 1 month, and 19 days of creditable active service.

10.  There is no evidence in the available records that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  The regulation states that abuse of illegal drugs is serious misconduct.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

	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 contends he has been a solid citizen since his discharge.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

2.  His record of service included one NJP and a bar to reenlistment.  As a result, his record of service was not satisfactory.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  Since a discharge under other than honorable conditions is normally appropriate for the authority and reason for his separation, the type of discharge directed and the reasons were proper considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant 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 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)                                         AR20140000305



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140000305



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1