BOARD DATE:  16 June 2015

		DOCKET NUMBER:  AR20140019662


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 (UOTHC) discharge to general, under honorable conditions.

2.  The applicant states he failed a urinalysis for which he should have been released from the military service.  However, he does not believe he committed any offenses warranting court-martial.  He contends he was a good Soldier for most of his 3 years in the military.  He argues that he was not given any kind of treatment for the addiction he suffered with for years.  He hopes that the Board can help him.

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.  On 3 September 1985, the applicant enlisted in the Regular Army.  He completed his initial training as a wire systems installer.

3.  On 21 February 1986, the applicant was assigned to the 258th Signal Company located at Fort Gordon, Georgia.  He accepted the following nonjudicial punishment (NJP):

* 1 May 1986: for wrongful use of marijuana
* 10 October 1986: for failure to go at the time prescribed to his appointed place of duty

4.  On 15 March 1987, the applicant departed Fort Gordon for duty with the 304th Signal Battalion, located in the Republic of Korea (ROK).  While in the ROK, he was advanced to specialist four, pay grade E-4.  He departed the ROK on 
20 April 1988, and was reassigned back to the 258th Signal Company at Fort Gordon.  After his arrival in Georgia, he accepted the following NJP.

* 15 August 1988: for wrongful use of cocaine
* 25 August 1988: for being absent without leave (AWOL) for 1 day and for failure to go at the time prescribed to his appointed place of duty
* 30 September 1988: for AWOL from about 22 to 27 September 1988

5.  On or about 9 September 1988, the commander recommended the applicant be separated from the military under the provisions of Army Regulation 635-200, chapter 14, due to a pattern of misconduct and the commission of a serious offense.

6.  On or about 19 September 1988, the applicant's commander notified him of his intent to separate him from the military under the provisions of Army Regulation 635-200, chapter 14, due to a pattern of misconduct and the commission of a serious offense.  He acknowledged receipt of the commander's intent that same day.

7.  On or about 21 September 1988, the applicant consulted with counsel concerning his rights and requested consideration of his case by an administrative separation board and to appear before such board.  He elected not to make a statement in his own behalf.

8.  On 20 October 1988, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

9.  Accordingly, on 31 October 1988, the applicant was discharged under other than honorable conditions.  His DD Form 214 shows he completed 3 years, 
1 month and 9 days of creditable active duty service, and had about 19 days of lost time.  The reason for his discharge is shown as misconduct - abuse of illegal drugs.  His characterization of service was UOTHC.

10.  There is no indication that 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 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include a pattern of misconduct and the commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A UOTHC discharge is 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 (emphasis added), 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.
   
	d.  This regulation further provides that misconduct is considered a commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice (UCMJ).

12.  Under the UCMJ, the maximum punishment allowed for violation of Article 112a for the wrongful use of cocaine or marijuana is a punitive discharge and confinement for 5 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded to general, under honorable conditions because he was a good Soldier for most of his 3 years.

2.  The applicant admits he failed a urinalysis for which he should have been released from the military service.  Those failures were caused by his wrongful use of controlled substances, a serious offense for which he could have been court-martialed.  The applicant's record of good service was greatly diminished by his commission of these serious offenses.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20140000269



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ABCMR Record of Proceedings (cont)                                         AR20140019662



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