BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010044 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ __x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010044 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. BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010044 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 discharge under other than honorable conditions (UOTHC). 2. The applicant states his discharge was inequitable because it was based on one isolated incident in 6 months of service with no other adverse actions. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * three DD Forms 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) * DA Form 2-1 (Personnel Qualification Record – Part II) * letter from the National Personnel Records Center, dated 29 September 2010 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 enlisted in the Regular Army on 23 February 1979 for a period of 3 years. He was honorably discharged on 23 August 1981 for immediate reenlistment. He reenlisted on 24 August 1981 for a period of 3 years. He was promoted to sergeant/E-5 effective 1 May 1983. He was honorably discharged on 25 June 1984 for immediate reenlistment. He reenlisted on 26 June 1984 for a period of 6 years. 3. The available evidence shows: * he had a positive urinalysis for cocaine on 27 March 1985 * he entered the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 8 May 1985 as a command referral for cocaine abuse * he had a positive urinalysis for cocaine on 15 August 1985 * the ADAPCP staff declared him a rehabilitation failure on 9 September 1985 4. On 9 October 1985, he was notified of his pending separation for misconduct (drug abuse) under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12d. The unit commander cited the applicant's positive urinalyses and his repeated acts of misconduct for failing to obey orders, being disrespectful, and being late for work. 5. On 10 October 1985 after consulting with counsel, he requested a personal appearance with counsel representation before a board of officers. He acknowledged that he might encounter substantial prejudice in civilian life if he were issued a general discharge. He elected not to submit a statement in his own behalf. 6. On 18 July 1986, nonjudicial punishment was imposed against him for being absent from his place of duty from 23 June 1986 to 30 June 1986, using cocaine, and failing to return to his appointed place of duty. His sentence included reduction to specialist, forfeiture of pay, restriction, and extra duty. 7. On 7 August 1986, a board of officers convened to determine whether he should be discharged because of misconduct before his expiration term of service. The board of officers found the applicant was undesirable for further retention in the service because of misconduct and recommended his discharge from the service with the issuance of a UOTHC Discharge Certificate. 8. The separation authority approved the recommendation and directed the issuance of a UOTHC Discharge Certificate. 9. On 17 October 1986, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12d, for misconduct (drug abuse). He completed a total of 7 years, 7 months, and 25 days of creditable active service. His character of service was UOTHC. 10. In September 1987 and November 1992, the Army Discharge Review Board denied his requests for a discharge upgrade. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. a. Chapter 14 deals provides for separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration term of service. The regulation in effect at the time stated individuals in pay grades E-5 and above could be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 could also be processed after a first drug offense and must have been processed for separation after a second offense. The issuance of a discharge UOTHC was normally considered appropriate. 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 contention his discharge was inequitable because it was based on one isolated incident in 6 months of service with no other adverse actions. The evidence of record shows he tested positive on two urinalyses (27 March 1985 and 15 August 1985) for cocaine use; he was an ADAPCP rehabilitation failure; and his unit commander cited his repeated acts of misconduct for failing to obey orders, being disrespectful, and being late for work. 2. His administrative separation for misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so. 3. The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case. 4. His last enlistment included one nonjudicial punishment for using cocaine while serving in the rank of sergeant/E-5. His record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel. His record of service is insufficiently meritorious to warrant an honorable or a general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010044 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010044 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2