BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20150017286 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: 9 May 2017 DOCKET NUMBER: AR20150017286 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: 9 May 2017 DOCKET NUMBER: AR20150017286 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 under other than honorable conditions (UOTHC) discharge to an honorable or general, under honorable conditions discharge. 2. The applicant states he was told he could be retained on active duty if he completed the Army drug program, which he did. 3. The applicant provides: * Standard Form 509 (Medical Record-Progress Notes) * Optional Form 275 (Medical Record Report) * Self-authored memorandum with letter of support * Memorandum, Subject: Notification to Appear Before Board of Members, dated 6 June 1995 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. After completing 11 years, 5 months, and 26 days of prior active duty service, the applicant enlisted in the Regular Army on 7 January 1991. He held military occupational specialties 91P (X-Ray Specialist) and 91B (Medical Specialist). 3. The applicant accepted non-judicial punishment (NJP) under the provisions of Article 15, of the Uniform Code of Military Justice on 9 February 1995, for his wrongful use of a controlled substance (cocaine). The Medical Department Activity (MEDDAC) Commander, a colonel (COL/O-6), initiated and administered this NJP. 4. On 13 February 1995, the MEDDAC commander prepared a memorandum for record indicating that if the applicant successfully completed the Track II Program (Alcohol and Drug Abuse Prevention and Control Program), Alcoholics or Narcotics Anonymous until his acceptance into the inpatient Track III Program, and completion of the follow on program of approximately 1 year, then he would: a. find no reason to revoke the applicant’s license [Radiology Technician] and b. support the applicant in the impending chapter 14 action required by regulation. 5. On 28 February 1995, the immediate commander notified the applicant she was initiating action to separate him under the provisions of paragraph 14-12c of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct – abuse of illegal drugs. The unit commander cited the applicant's positive urinalysis for cocaine as the reason for her proposed action. 6. On 2 March 1995, the applicant underwent a mental status evaluation conducted by a psychologist that showed: * his behavior and thought content were normal * he was fully alert and oriented * his mood was unremarkable * his thinking process was clear * his memory was good * he had the mental capacity to understand and participate in separation proceedings * he met medical retention standards * he was psychiatrically cleared for administrative action 7. On an unknown date, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects. The applicant completed his election of rights statement indicating his options to: * request consideration of his case by an administrative separation board * request personal appearance before an administrative separation board * not submit a statement on his own behalf * request consulting counsel and representation by military counsel 8. On April 6, 1985, the MEDDAC commander recommended disapproving the applicant’s chapter 14-12c discharge action based on the fact he was a nationally certified radiology technologist and an instructor responsible for training 20 x-ray technicians. During administration of the applicant’s NJP, he imposed the maximum punishment and then directed the applicant seek medical treatment for his use of cocaine. He also imposed restrictions on the applicant’s ability to perform invasive procedures on patients and suspended his instructor duties. 9. Members of the applicant’s chain of command prepared recommendations to USARMY Pentagon HQDA ARBA List ABCMR Personnel retain the applicant on active duty and/or to issue him an honorable discharge from military service on the following dates as indicated: * immediate commander – 6 July 1995 * MEDDAC commander – 7 July 1995 * Garrison Troop Commander – date unknown * sergeant major – 15 August 1995 10. On 16 August 1995, an administrative separation board convened to determine if the applicant should be discharged from military service prior to his expiration of normal term of service. The immediate commander gave testimony indicating: a. originally, the command wanted to retain the applicant on active duty because he was an outstanding noncommissioned officer (NCO), supervisor, and instructor of Phase II students from Fort Sam Houston, TX; b. the applicant told them “this was an isolated incident” and never admitted to drug use any other time; c. the command’s recommendations towards the applicant changed after a review of his military record revealed acceptance of NJP for previous marijuana use during advanced individual training; d. at the time of the applicant’s positive urinalysis test, several NCOs in the unit came forward on his behalf and were behind him during the Article 15 proceedings, and she, having gone out on the limb in an attempt to retain the applicant on active duty, was hurt and felt they were all misled; and e. a radiology student, a private (PVT/E-1) whom the applicant directly supervised, was discharged under chapter 14, after testing positive on a urinalysis in November 1994, at which time the applicant recommended she be discharged from military service. 11. After considering all of the evidence before it, the administrative separation board of officers found that the applicant did commit a serious act of misconduct and recommended his discharge from the Army for misconduct with issuance of a UOTHC discharge. On 3 October 1995, the general court-martial convening authority: * approved the findings and recommendations of the administrative separation board * directed the applicant’s reduction to the lowest enlisted grade of private (PVT/E-1) * directed the applicant’s discharge under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of commission of a serious offence, with an UOTHC discharge 12. On 19 and 23 October 1995, the applicant and his counsel initiated an appeal of the administrative separation board action claiming he was not aware he would be reduced in rank upon discharge. He sought the assistance of civilian counsel who submitted a request for clemency. Further review by the Staff Judge Advocate determined it was immaterial as to whether the applicant was counseled he could be reduced in grade as it was a regulatory requirement. On 27 October 1995 after considering the additional matters, the general court-martial convening authority reaffirmed his original decision and directed the applicant’s discharge from military service. 13. On 30 October 1995, the applicant was discharged accordingly. The DD Form 214 issued to him upon his discharge confirms his separation under the provisions of paragraph 14-12c(2), Army Regulation 635-200, by reason of misconduct. It shows he completed 16 years, 3 months and 20 days of net active service and that he held the rank of private/E-1 at the time of his discharge. 14. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 15. The applicant provides two medical documents showing his positive urinalysis for cocaine and then successful completion of the 6-week addiction treatment program on 2 June 1995. He also provides two copies of official military personnel file documents extracted from his discharge packet. REFERENCES: Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct, including the commission of a serious offense. The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. Soldiers in the grades of E-5 through E-9 who are first time drug offenders will be processed for separation. All Soldiers who are second time drug offenders must be processed for separation. An honorable or a general discharge may be awarded by the separation authority if warranted by the member's overall record of service; however, a discharge UOTHC is normally considered appropriate for members separated under these provisions. 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 confirms the applicant's disciplinary history includes NJP for a positive urinalysis test result for cocaine. 2. The evidence of record confirms the applicant’s chain of command attempted to retain him on active duty based on the isolated incident of misconduct. However, an earlier drug-related conviction surfaced during a review of his military record causing his chain of command to feel misled and/or to change their favorable recommendations. 3. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017286 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017286 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2