IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150010674 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: 26 May 2016 DOCKET NUMBER: AR20150010674 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: 26 May 2016 DOCKET NUMBER: AR20150010674 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 characterization of service from under honorable conditions (general) to honorable. 2. The applicant states, in effect: a. He would like to change a wrong to a right based on having kept his record clean since he was discharged. He was young, naïve, and irresponsible at the time he dabbled in illegal drugs. He has been very responsible since the incident in 1989. He has worked hard labor jobs and is a well-respected person. b. After 4 years of plumbing trade school in Fairfax, VA, he received his journeyman license in plumbing and he worked in the trade for 12 years. He also received a Class A Commercial Driver License with Transportation Worker Identification Credential (TWIC) to pick up materials off the ports. The 2008 crash of the housing market hurt his plumbing business, now he drives a flatbed truck across the lower 48 states. c. It has been 26 years and he would like to have his discharge upgraded to honorable. He knows he messed up, it has hurt him personally, and he is sorry. 3. The applicant provides a copy of his NC Commercial Driver License. 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 was 20 years of age when he enlisted in the Regular Army on 10 April 1987. 3. The applicant’s record contains numerous DA Forms 4856 (General Counseling Form) showing he received negative counseling between 30 June 1988 and 23 August 1989 for the following infractions: * failing to be on time for duty * lack of motivation * showing up to formation in dirty boots * disobeying an order * repeatedly missing formation * failing to prepare for inspection * testing positive for cocaine on or before 17 July 1989 4. On 29 August 1989, the applicant received a bar to reenlistment based on his poor duty performance and positive urinalysis test given on 17 July 1989. 5. On 12 September 1989 while holding the rank/grade of private first class (PFC)/E-3 and in an open hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using cocaine at or near Fort Wainwright, AK, on or between about 8 July 1989 and 17 July 1989. 6. On 13 September 1989, the applicant received counseling for testing positive for cocaine for the second time on or before 18 August 1989. 7. On 19 September 1989, the applicant underwent a command directed mental health status evaluation in which it was determined he suffered from no psychiatric disorder. The examining official psychiatrically cleared the applicant for any administrative action deemed appropriate by his command. 8. On 22 September 1989, while holding the rank/grade of private (PV2)/E-2 and in an open hearing, he accepted NJP under the provisions of Article 15, UCMJ, for wrongfully using cocaine at or near Fort Wainwright, AK, between on or about 29 July 1989 and 7 August 1989. 9. On 2 October 1989, the applicant's commander notified him that he was initiating action to discharge him from the service for misconduct – abuse of illegal drugs – under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c. His commander recommended a general discharge. The applicant acknowledged receipt of the notification. 10. On 3 October 1989, he consulted with legal counsel, who advised the applicant of the basis for the contemplated separation action, the possible effects of a discharge, the rights available to him, and the effect of any action taken by him in waiving his rights. 11. On 10 October 1989, the applicant's commander formally recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12c. The commander cited the applicant's illegal drug use as the reason for his recommendation. 12. On 12 October 1989, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 14, and directed the issuance of a general discharge. 13. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged on 20 October 1989, for misconduct-abuse of illegal drugs. He completed 2 years, 6 months, and 11 days of net active service during this period with no time lost. 14. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 provides for separation for various types of misconduct, which include drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense. The issuance of a discharge under other than honorable conditions is normally considered appropriate. 2. Army Regulation 635-200, 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 applicant contends that the Board should upgrade his under honorable conditions (general) discharge. 2. Notwithstanding the applicant's sincerity and post-service accomplishments, he was over 23 years of age at the time of his offenses. There is no evidence to indicate he was any less mature than other Soldiers of the same age who successfully completed their military service. 3. The evidence of record shows he committed a serious offense in that he twice wrongfully used illegal drugs. As a result, his chain of command initiated separation action against him. His separation processing met all the requirements of law and regulation and fully protected his rights throughout the process. He was discharged under the provisions of Army Regulation 635-200, chapter 14, due to his own misconduct. 4. Although an under other than honorable conditions discharge was normally considered appropriate for the offense committed, it appears his chain of command considered his overall record of service when the separation authority directed the issuance of a general discharge. 5. Nevertheless, based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. In accordance with Army Regulation 635-200, paragraph 3-7, his service did not meet the criteria 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) AR20150010674 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010674 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2