IN THE CASE OF:	  

		BOARD DATE:	  13 November 2014

		DOCKET NUMBER:  AR20140005555 


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 under other than honorable conditions discharge. 

2.  The applicant states he tested negative during a random drug test.  Within an hour of receiving the results, he was required to submit to a second test.  He was the only one required to submit to a retest.  The retest came back positive.  He was reduced from a promotable E-5 to an E-1 and given extra duty.  He was offered no legal assistance or means to represent himself.  His discharge was inequitable.  He is a proud American fighting man.  He believes: 

* he was unfairly signaled out for some reason
* he was not offered any legal representation
* he was discharged based on a single incident in 10 years of exemplary service
* it has been 24 years since his discharge; he wants his honor back

3.  The applicant provides:

* Certificate of recognition of the "Strap Em Up Boot Camp"
* Self-authored narrative of the "Strap Em Up Boot Camp" program
* Newspaper article and photographs related to this program
* Multiple letters of support, appreciation, and commendation and a listing of affiliation regarding this program
* Certificate of Existence, Non-profit organization
* Stepping Stones Foundation By-laws 
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 enlisted in the Regular Army (RA) on 28 August 1979 and he held military occupational specialties 76D (Materiel Supply Specialist) and 19K (M-1 Tank Crewmember).  

3.  He served through multiple extensions or reenlistments in a variety of assignments, including service in Korea from May 1983 to May 1984 and Germany from January 1986 to January 1989. 

4.  He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Army Commendation Medal (2nd Oak Leaf Cluster (OLC)), Army Achievement Medal (2nd OLC), Noncommissioned Officer Professional Development Ribbon (2nd Award), Army Good Conduct Medal (3rd Award), Expert Marksmanship Qualification Badge with Grenade and Pistol Bars, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Driver and Mechanic Badge with Driver-Wheel Vehicle. 

5.  In or around February 1989, he completed the Drill Sergeant Course and on 9 February 1989, he was assigned as a drill sergeant to the 1st Battalion, 34th Infantry, Fort Jackson, SC.  He was holding the rank and grade of sergeant (SGT)/E-5 at the time. 

6.  On 8 January 1990, he participated in a unit urinalysis and his urine sample tested positive for cocaine.  

7.  On 9 February 1990, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using cocaine.  His punishment consisted of a reduction to specialist four (SP4)/E-4, forfeiture of pay for 2 months, suspended restriction, and extra duty. 

8.  On 6 March 1990, his immediate commander initiated a Bar to Reenlistment Certificate against him.  He cited his wrongful abuse of an illegal drug and the resultant Article 15.  The applicant was provided with a copy of this bar but he elected not to submit a statement in his own behalf.  The approval authority ultimately approved his bar. 

9.  On 29 March 1990, the Commanding General, Fort Jackson, SC, requested removal of the applicant from the Drill Sergeant Program and withdrawal of the Drill Sergeant Identification Badge, due to failure to maintain high standards of conduct and professionalism.  

10.  On 29 March 1990, the applicant was removed from the program and his Drill Sergeant Identification Badge was rescinded.  

11.  The complete facts and circumstances regarding his discharge are not available for review with this case.  However, his records contain: 

	a.  A mental status evaluation, dated 14 March 1990, that shows he was referred for evaluation pending a chapter 14 discharge.  He reported that he had "two positive urinalysis [sic] for cocaine."  He was psychiatrically cleared for any administrative or judicial actions deemed appropriate by his command. 

	b.  The back page of an acknowledgement statement that contains the signature of an attorney and the statement “having been advised by me of the basis of his contemplated separation and its effects, the rights available to him and the effect of a waiver of his rights, [Applicant] personally made the choice indicated on the foregoing statement.”  

	c.  Three endorsements, dated 20 March 1990, from his company, battalion, and brigade commanders recommending disapproval of his conditional waiver.

	b.  A memorandum, dated 9 May 1990, Subject: Approved Chapter, authenticated by the Legal Clerk, indicating the applicant was approved for separation under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations). 

	d.  Orders 91-25, issued by Headquarters, U.S. Army Training Center, Fort Jackson, SC, on 9 May 1990, ordering his discharge effective 23 May 1990 under the provisions of Army Regulation 635-200. 

	e.  A letter, dated 22 May 1990, from the Chief, Personnel, Plans, and Actions, Headquarters, U.S. Army Training Center, Fort Jackson, SC, informing the applicant that he had been separated from the U.S. Army with an under other than honorable conditions.  The Commanding General has informed him (the author of the letter) that his (the applicant's) presence on Fort Jackson is prohibited.  

	f.  A duly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 23 May 1990 under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct - commission of a serious offense with a character of service of under other than honorable conditions.  This form further shows he completed 10 years, 9 months, and 5 days of creditable active service.

12.  There is no indication the applicant petitioned the Army Discharge Review Board for a review/upgrade of his discharge within that board's 15-year statute of limitations. 

13.  He provides multiple documents related to a non-profit program known as the Stepping Stones' Foundation "Strap Em Up Boot Camp."  He describes this program and its goals/activities, and provides multiple letters of commendation and/or appreciations from various individuals and/or organization. 

14.  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 convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.    

	a.  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. 

	b.  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 record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 23 May 1990 under the provisions of chapter 14 of Army Regulation 635-200 for committing a serious offense with a character of service of under other than honorable conditions. 

2.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information or evidence that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service.   

3.  His discharge appears to have been appropriate based on his commission of two incidents of a serious offense (abuse of illegal drugs).  Based on his record of indiscipline, which includes his NJP and bar to reenlistment, his service clearly does not merit an upgrade of his discharge.  Therefore, there is insufficient evidence to support an upgrade of his discharge to a general or a fully honorable 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)                                         AR20140005555





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ABCMR Record of Proceedings (cont)                                         AR20140005555



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