BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150011830 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: 16 June 2016 DOCKET NUMBER: AR20150011830 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: 16 June 2016 DOCKET NUMBER: AR20150011830 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. 2. The applicant states he used drugs to self-medicate his back pain. He got this pain due to physical training and exercising. He was told he would be thrown out of the Army if he kept going on sick call. In any case, he has since completed a 12-step program in jail and a 40-hour drug class in prison. 3. The applicant provides 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. The applicant enlisted in the Regular Army on 9 September 1986 and he held military occupational specialty 72E (Combat Telecommunications Center Operator). 3. He served in Germany from 16 February 1987 to 8 January 1989. He was assigned to Company A, 38th Signal Battalion. 4. He was frequently counseled by members of his chain of command, for various infractions including: * being impaired for duty * multiple instances of missing formation * insubordination and being disrespectful toward superiors * a lack of discipline * disobeying orders * failing to follow simple instructions * displaying a bad/negative attitude * being seen in the female latrine * being missing from guard duty * being arrested by Military Police 5. On 16 March 1987, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for unlawfully entering the female latrine without consent of any person. 6. On 27 May 1987, he departed his unit on leave but did not return to duty at the conclusion of his leave. As such, on 11 June 1987, he was reported in an absent without leave (AWOL) status. He returned to military control on 15 June 1987. 7. On 25 June 1987, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 11 to 15 June 1987. 8. On 31 December 1987, he was apprehended by Military Police for drinking on duty. He was administered a breathalyzer that yielded a reading of 0.8 percent BAC (breath alcohol content). 9. On 2 March 1988, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty (twice), disobeying a lawful order, and being disrespectful in language toward a noncommissioned officer (NCO). His punishment consisted of a reduction to the lowest enlisted grade, a forfeiture of pay, and restriction and extra duty. 10. On 15 September 1988, he participated in a unit urinalysis and his urine sample tested positive for marijuana. 11. On 16 November 1988, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct - commission of a serious offense, wrongfully using and possessing illegal drugs. The immediate commander also notified him that he intended to recommend his service be characterized as honorable. However, the separation authority was not bound by this recommendation. 12. On 30 November 1988, the applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel. He was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He acknowledged he understood he was entitled to an administrative separation board if he had over 6 years of total service. He also elected not to submit a statement in his own behalf. He also voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less than honorable. He further indicated that he understood: a. He could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. b. He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge. 13. Subsequent to his acknowledgement, the applicant's immediate commander formally initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense. He indicated that the applicant had received an Article 15 for wrongfully using and possessing illegal drugs, another Article 15 for disrespect and missing formation, and a third Article 15, also for disrespect and missing formation. 14. On 16 November 1988, his intermediate commander recommended approval of the applicant's separation with an under honorable conditions (general) characterization of service. 15. On 20 December 1988, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense and directed his service be characterized as under honorable conditions (general). On 9 January 1989, the applicant was discharged accordingly. 16. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense with a character of service of under honorable conditions. This form further confirms he completed 2 years, 3 months, and 27 days of active service during this period of service with 4 days of lost time. His DD Form 214 shows he was awarded or authorized the: * Army Service Ribbon * Overseas Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Army Achievement Medal 17. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 18. His medical records are not available for review. The available records do not contain any physical profiles for physical training or any other medical condition. REFERENCE: Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 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. DISCUSSION: 1. The evidence of record shows the applicant committed a serious offense of wrongfully possessing and using illegal drugs, disrespecting an NCO, and missing formation. Accordingly, his chain of command initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 2. There is nothing in his records and nothing he provides corroborates or supports his contention that his misconduct of abusing illegal drugs was caused by back pain, which was in turn caused by physical training and exercising. Additionally, although his post-service achievements (12-step program and a 40-hour drug class) are noteworthy; however, they have no bearing on the characterization of his military service. 3. An 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. The applicant's record contains an extensive history of negative counseling for insubordination, disobeying orders, being disrespectful, and missing formation, as well as three instances of NJP, one of which was for wrongfully using and possessing illegal drugs. 4. Based on the applicant’s record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. His service does not rise to the level required for an honorable characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011830 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011830 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2