AR20150010090

IN THE CASE OF:

BOARD DATE: 5 May 2016

DOCKET NUMBER: AR20150010090

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

____x___ ____x___ ____x ___ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 5 May 2016

DOCKET NUMBER: AR20150010090

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.

IN THE CASE OF:

BOARD DATE: 5 May 2016

DOCKET NUMBER: AR20150010090

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 upgrade of his under other than honorable conditions (UOTHC) discharge.

2. The applicant states, in effect:

a. His father retired from the U.S. Air Force and his two older brothers retired from the U.S. Army. He is the youngest of six children. He completed one year of college. He completed the Primary Leadership Development Course at Fort Hood, Texas. He graduated from high school with a 2.8 grade point average. He participated in the Army Junior Reserve Officer Training Corps in high school.

b. He was a squad leader during his initial entry training. He participated in company football and baseball. He was awarded the Army Achievement Medal, the Noncommissioned Officer Professional Development Ribbon and the Expert Marksmanship Qualification Badge with Rifle Bar. He was also sent to the Army E-5 Promotion Board.

c. When he was 26 years old he got two women in his company pregnant at the same time. He was put out of the unit. His First Sergeant told him he was an occupational hazard. He was given 30 days to get a letter of acceptance from another unit. He got the letter of acceptance and married one of the women he had gotten pregnant.

d. His wife and daughter were sent to Germany. His daughter was 4 months old. He did not receive orders to join his family in Germany. He had only been with his wife for a year and a half. His other daughter was also taken away from him and he did not see her for years. He tried to stay stable; unfortunately, he turned to a drug that he had never used before. He takes full responsibility for his actions. Since leaving the military he has been hospitalized twice for attempted suicide.

e. He supports the discipline and order of the Army. Although he cannot change the past, he is hoping for a strong future. He has changed his life and is requesting an upgrade of his discharge. He needs this to be clear with himself and his daughters.

3. The applicant provides a self-authored statement and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years 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 19 April 1983.

3. During the period 4 September 1987 to 29 October 1987 he received 12 counseling statements for failure to repair.

4. The available evidence indicates he received nonjudicial punishment (NJP) under the provisions of Article15 of the Uniform Code of Military Justice on the following occasions:

* 24 June 1987, for wrongfully using cocaine on or about 5 May 1987
* 21 July 1987, for wrongfully using cocaine on or about 8 June 1987
* 2 November 1987, for failing to go to appointed place of duty on or about 2 November 1987

5. On 27 October 1987, the unit commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separation Enlisted Personnel), paragraph 14-12b, for patterns of misconduct. He cited the applicants repeated incidents of failure to repair and two urine specimens which tested positive for cocaine as the reasons for the proposed separation action. The commander informed the applicant of his right to consult with legal counsel, to obtain copies of documents pertaining to the separation action, to request a hearing before an administrative board, to be represented by either or both military and civilian counsel, to waive his rights, and/or to submit a request for a conditional waiver of any rights.

6. On 3 November 1987, the applicant requested a conditional waiver, voluntarily waiving consideration by an administrative board, contingent upon receiving a characterization of service or description of separation no less favorable than under honorable conditions. It appears that his request was denied.

7. On 1 December 1987, he waived his right to an Administrative Board.

8. On 15 December 1987, the separation authority approved the separation action and directed the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.

9. On 30 December 1987, he was discharged in accordance with the separation authority’s decision.

10. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that boards 15-year statute of limitations.

REFERENCES:

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

a. Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. The issuance of a discharge under other than honorable conditions is normally considered 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 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:

1. The evidence of record does not support the applicant’s request for an upgrade of his UOTHC discharge.

2. He received NJP on two occasions for wrongfully using cocaine and was counseled on numerous occasions for failure to repair. Accordingly, his chain of command initiated separation action against him.

3. He was properly and equitably discharged in accordance with regulations in effect at the time. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The records contain no indication of procedural or other errors that would have jeopardized his rights.

4. The reason for discharge and the characterization of service were both proper and equitable. The quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150010090

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150010090

4

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2