IN THE CASE OF: BOARD DATE: 10 June 2010 DOCKET NUMBER: AR20100000098 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 that his narrative reason for separation be changed. 2. The applicant states when he went home on leave, he learned that a family member was hooked on drugs and living on the streets. He located the family member but it took him too long to convince her to come with him. Unfortunately, she was in a drug house which was filled with drug smoke. 3. He states he realizes he should not have gone into the drug house, but he received certificates and very productive reviews after he returned to Fort Lee, VA. His behavior, attitude, soldiering and love of being a Soldier were not those of a drug abuser. 4. The applicant does not provide any additional documents. 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 military records show that he enlisted in the Regular Army on 5 April 2001. 3. On 29 August 2001, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 23 July to 18 August 2001. 4. On 24 September 2001, the applicant accepted NJP for wrongful use of cocaine which was detected during a urinalysis on 20 August 2001; for failure to obey an order; and failure to be at his appointed place of duty at the time prescribed. 5. On 2 October 2001, the applicant's commander notified him of his intent to recommend him for discharge due to misconduct – commission of a serious offense as a result of the wrongful use of cocaine. He was also advised of his rights. 6. The applicant submitted a conditional waiver wherein he waived a board of officers contingent upon receiving not less than a general discharge. 7. The applicant's conditional waiver was accepted by the appropriate authority. Accordingly, on 29 October 2001, the applicant was issued a general discharge. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows in Item 25, Separation Authority, Army Regulation 635-200 (Enlisted Separations), paragraph 14-12c(2). Item 28, Narrative Reason for Separation, shows "Misconduct." The applicant had 6 months of creditable active service. 8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 14-12c, misconduct, commission of a serious offense, applies to the separation of individuals who committed a serious military or civil offense, if the specific circumstance of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the manual for courts-martial. When separation is ordered under this paragraph, an under other than honorable conditions (UOTHC) discharge is normally considered appropriate. DISCUSSION AND CONCLUSIONS: 1. The applicant was discharged due to the use of cocaine, which is serious misconduct. As such, the Narrative Reason for Separation properly reflects "Misconduct." 2. Contrary to the applicant's contention that he was an exemplary Soldier, he accepted NJP for being AWOL for 26 days, failure to obey an order, and failure to be at his appointed place of duty at the time prescribed. Such a record of indiscipline all within a 6-month period of service, in combination with his positive urinalysis for cocaine, is not indicative of an exemplary Soldier. 3. In view of the foregoing, there is no basis for granting the applicant's request. 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) AR20100000098 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100