IN THE CASE OF:	  

		BOARD DATE:	 3 February 2015 

		DOCKET NUMBER:  AR20140009843 


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 general discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states he has matured and taken significant steps toward self improvement.  He completed private drug and alcohol treatment shortly after discharge and earned a college degree.  He works as a drug and alcohol counselor as well as manages a homeless shelter and is a cardiopulmonary resuscitation and first aid instructor.

3.  The applicant provides copies of his résumé, DD Form 214 (Certificate of Release or Discharge from Active Duty), an Alcohol/Drug Counseling certificate, an Associate of Applied Sciences degree certificate, and an American Red Cross First Aid Instructor certificate.

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, with prior Ohio Army National Guard service, enlisted in the Regular Army on 23 December 1988 in the military occupational specialty 62B (Construction Equipment Operator).

3.  The applicant's record contains 31 negative counseling statements, negative personnel actions, and/or military police reports and log entries showing – 

* missing morning formation on 26 April 1989
* missing morning formation on 2 May 1989 
* missing morning formation, missing work call, and failure to notify his command of his whereabouts on 3 May 1989
* missing morning formation and failure to report for duty on 5 May 1989
* wrongful use of a controlled substance – cocaine on 9 May 1989
* speeding on 12 May 1989
* failure to pay a just debt on 17 May 1989
* civilian confinement (12 – 17 May 1989) on 17 May 1989
* revocation of pass privileges due to repeated tardiness, association with drug users, and bad checks on 17 May 1989
* wrongful use of a controlled substance – cocaine on 18 May 1989
* twice disobeying a direct order from a noncommissioned officer (NCO) on 20 May 1989
* violation of his pass privileges revocation on 22 May 1989
* writing three bad checks on 25 May 1989
* theft on 5 June 1989
* continuation of the revocation of his pass privileges on 8 June 1989
* writing three bad checks on 9 June 1989
* violation of his restriction to the unit area, failure to pay just debt, a positive urinalysis – cocaine (9 May 1989), and three days of absence without leave (AWOL) on 9 June 1989
* violation of a direct order on his pass privileges revocation on 12 June 1989
* attempted suicide on 15 June 1989
* confinement by civilian authorities for theft (29 June – 2 July 1989) on 29 June 1989
* disobeying a lawful order twice and providing a false name to civilian police on 14 July 1989
* failure to pay a just debt and being absent from his unit formation on 20 July 1989
* missing morning formation and failure to report for extra duty on 24 July 1989
* positive drug test on two occasions on 26 July 1989
* repeatedly being late for formation on 28 July 1989
* making a false statement on 28 July 1989
* disobeying a direct order from a commissioned officer on 8 August 1989
* providing a false statement concerning his privately owned vehicle having been stolen on 10 August 1989
* failure to return a motor vehicle belonging to another Soldier pawning the stereo system from the vehicle to buy cocaine, and operating the vehicle in a manner resulting in an accident with significant damage to the vehicle on 24 August 1989
* a civilian traffic ticket for improper lane use resulting in an accident and operating a motor vehicle without a license on 27 August 1989
* wrongful appropriation of private property and wrongful use of a controlled substance – cocaine on 29 August 1989

4.  On 27 June 1989, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for disobeying a lawful order from an NCO, disobeying a lawful order from a commissioned officer, failure to pay a just debt on two occasions, AWOL 3 – 6 June 1989, and wrongful use of a controlled substance – cocaine.

5.  An undated Personnel Data Summary states –

* the applicant was a self–referral to the Drug and Alcohol Program
* he was dropped from the program due to being AWOL
* the applicant was command-referred to the Drug and Alcohol Program
* he was dropped from the program due to being AWOL

6.  On 9 September 1989, the applicant's command initiated separation action under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for acts or a pattern of misconduct.  His unit commander recommended he be discharged under other than honorable conditions (UOTHC).

7.  On 20 September 1989, he acknowledged his command's initiation of separation action; he waived counsel, review by a board of officers, personal appearance before a board of officers, to submit a conditional waiver, and to submit a statement on his own behalf.

8.  The discharge authority approved the discharge recommendation, waived further rehabilitation efforts, and directed the applicant receive a GD.
9.  On 23 October 1989, the applicant was discharged under Army Regulation 635-200, paragraph 14-12d with a GD.  He had 9 months and 27 days of creditable active duty with 4 days of lost time.

10.  There is no indication the applicant applied for review of his discharge by the Army Discharge Review Board within its 15-year statutory limit.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

   a.  Chapter 3, as in effect at that time, outlines the criteria for characterization of service as follows:

	b.  Paragraph 3-7a states that an HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	c.  Paragraph 3-7b states that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD.  

   d.  Paragraph 3-7c states that a UOTHC discharge is issued when there are one or more acts or omissions that constitute a significant departure from the conduct expected of a Soldier.  

   e.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include a pattern of misconduct.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Although an HD or GD is authorized, a discharge UOTHC is normally considered appropriate.  

DISCUSSION AND CONCLUSIONS:
   
1.  The applicant's record shows that in a 4-month period he was counseled and/or punished for at least 43 offenses including AWOL, three positive urinalyses for cocaine with disenrollment from drug and alcohol rehabilitation twice, and his habitually failing to report to his place of duty.

2.  In view of the applicant's numerous acts of disciplinary infractions, for whatever reason the discharge authority directed the applicant should receive a GD.  The fact that he received a GD with the significant history of misconduct shows significant leniency on the part of the discharge authority.

3.  The applicant’s post service activities are noted; however, these activities are not so exceptionally meritorious as to outweigh the offenses that resulted in his discharge, especially in light of the fact that his military record is devoid of significant service.

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge was extremely generous considering the applicant's overall military record.

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)                                         AR20140009843



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ABCMR Record of Proceedings (cont)                                         AR20140009843



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