IN THE CASE OF: BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20150011130 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 IN THE CASE OF: BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20150011130 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: 7 June 2016 DOCKET NUMBER: AR20150011130 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 general discharge under honorable conditions to honorable. 2. The applicant states: a.  He has furthered his education and he is seeking a government job. He believes his narrative reason for separation listed as misconduct on his DD Form 214 (Certificate of Release or Discharge from Active Duty) will disqualify him from obtaining a government job or from any credible institution. b.  The incident leading to his discharge occurred 26 years ago and he has been repositioning his life every way possible. He has maintained a consistent work history in the same occupational field for a little over 24 years. c.  He is currently pursuing a business degree to go with his technology degree and having his discharge upgraded will help him going forward. 3. The applicant provides no additional evidence. 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 6 October 1987. 3. On 15 January 1988, he was counseled for failing to report to formation. 4. On 8 July 1988, his unit was notified of his failure to pay a telephone bill to South Central Bell in the amount of $99.63. 5. Records show that on 15 November 1988, he paid $30.00 to South Central Bell; $40.00 for insufficient funds; and $284.13 to the City Court Ward Marshall, Leesville, LA. 6. A DA Form 5160-R (Urinalysis Custody and Report Record), dated 27 February 1989, shows he and another Soldier in his unit tested positive for cocaine during a command-directed unit inspection. 7. On 2 March 1989, Your Credit, Incorporated, notified his command of his contracted loan, dated 19 August 1988, in the amount of $144.96, to be repaid in two installments of $72.48. It noted he paid $40.00 on 1 February 1989 and he promised to pay the account in full on 15 February 1989; however, he made no effort to pay or contact the company. 8. On 23 March 1989, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for wrongful use of cocaine at some unknown location between 4 February 1989 and 7 February 1989. 9. On 3 April 1989, he appealed his nonjudicial punishment and he submitted written statements attesting to his urinalysis notification and procedures followed during and after his urinalysis testing. He stated: a.  he and the other Soldier were accused by the first sergeant of not urinating in the testing bottles because the bottles were cold; b.  the observer, Staff Sergeant S____, told the first sergeant he did not visually observe him and another Soldier urinate in the testing bottles; c.  he and the other Soldier were ordered by the first sergeant to pour the urine samples out, rinse the bottles, and reuse them; d.  Staff Sergeant W____ told the first sergeant he could not do that, but the first sergeant overruled him anyway; e.  he was unable to provide a sample at the time and Staff Sergeant S____ took his bottle and returned it to the office of Staff Sergeant W____; and f.  he provided a urine sample about an hour later. 10. His immediate commander recommended denial of his nonjudicial punishment appeal and he provided an undated memorandum wherein he stated: a.  He questioned both Soldiers. His legal noncommissioned officer ascertained from Captain B____ the question of probable cause to have the Soldiers re-urinate. Captain B____ stated that he has told the Area Defense Counsel that when a sample is received and is cold, to have the Soldier re-urinate in a bottle. b.  Captain B____ stated that there were no more bottles present nor could any be had in time to have both Soldiers urinate in an uncontaminated bottle. c.  Captain K____, trial counsel, relayed to his legal noncommissioned officer that because new bottles could not be obtained and since both were physically observed the first time they gave samples, that the rinsing of the bottles and having both Soldiers reuse the same bottles, would not be grounds to have the tests invalidated. d.  Both Soldiers related that they did see their social security numbers etched on the top of the bottles in which they urinated and both rechecked the initials given on each label after the first time samples were taken. e.  He did not see that improper procedures were used in the conduct of obtaining both samples. 11. His DA Form 3822-R (Report of Mental Status Evaluation), dated 13 April 1989, shows he had the mental capacity to understand and participate in proceedings, he met retention requirements, and he was cleared for administrative action. 12. On 12 July 1989, his commander recommended his discharge for commission of a serious offense under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, based on his nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for use of cocaine; delinquent account to South Central Bell for $99.63; and indebtedness to Your Credit, Incorporated, for $144.96. He recommended issuance of a general discharge. 13. On 19 July 1989, he was advised by counsel of his commander's contemplated separation action against him for serious misconduct and of rights available to him. He waived consideration of his case by an administrative separation board and a personal appearance before an administrative separation board. He elected not to submit statements in his own behalf. He acknowledged that he could encounter substantial prejudice in civilian life and he would be ineligible for many or all benefits as a veteran under Federal and State laws. 14. On 25 July 1989, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed characterization of his service as general under honorable conditions. 15. On 25 August 1989, he was discharged accordingly. His DD Form 214 shows he completed 1 year, 10 months, and 20 days of creditable active military service. 16. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a.  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. b.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. 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 discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. c.  First-time offenders below the grade of sergeant or with less than 3 years of total military service, Active or Reserve, may be processed for separation as appropriate. DISCUSSION: 1. There is no evidence of record and the applicant has not provided any evidence showing he was not properly and equitably discharged in accordance with the regulations in effect at the time. His discharge was appropriate because the quality of his service was not consistent with Army standards. 2. It is presumed that the approval authority considered the totality of his service in directing his general discharge under honorable conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011130 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011130 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2