IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150012523 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: 21 July 2016 DOCKET NUMBER: AR20150012523 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: 21 July 2016 DOCKET NUMBER: AR20150012523 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 back in the 1970s and 1980s, there were no rehabilitation programs in the Army. He did not get the help he needed (for his drug issues) and the Army pushed him aside after 9 years and 6 months of service. No one tried to help him and he did not know where to go for help. He also wants to be buried with his flag at his service when the time comes. 3. The applicant does not provide any 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 11 July 1978 and he held military occupational specialty 63B (Wheeled Vehicle Mechanic). He served through multiple reenlistments. 3. He served in Germany from December 1978 to December 1980 and from September 1982 to April 1986. He was advanced to the noncommissioned officer (NCO) grade of staff sergeant (SSG)/E-6 in January 1986. 4. On 15 July 1986, the applicant's immediate commander referred him for screening at the Army Drug and Alcohol Prevention and Control Program (ADAPCP) after the applicant tested positive for illegal drugs. 5. On 29 July 1986, at Fort Gillem, GA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana. His punishment consisted of a reduction to sergeant (SGT)/E-5, a forfeiture of pay, and extra duty. He appealed but his appeal was denied. 6. On 6 August 1987, the applicant's commander again referred him to ADAPCP for screening after he tested positive for illegal drugs during a urinalysis. 7. On 16 November 1987, also at Fort Gillem, GA, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using cocaine and wrongfully using marijuana. His punishment consisted of a reduction to specialist four /E-4, a forfeiture of pay, and extra duty. He elected not to appeal. 8. On 9 September 1987, the applicant's immediate commander notified him of his intent to initiate separation action against him for misconduct in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c by reason of commission of a serious offense. The immediate commander recommended an under other than honorable conditions discharge. 9. On 11 September 1987, the applicant acknowledged receipt of the commander's intent to separate him. He subsequently consulted with legal counsel and was advised of the basis for the contemplated separation action 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 available to him. He requested consideration of his case by an administrative separation board and/or personal appearance before a board and he elected not to submit a statement in his own behalf. He acknowledged he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded 10. Subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to misconduct, commission of a serious offense, in accordance with AR 635-200, chapter 14. 11. On 2 December 1987, the applicant submitted a conditional waiver. He indicated that after consulting with counsel and being advised of his rights, he elected to waive consideration of his case by an administrative separation board and/or personal appearance before a board contingent upon receiving a characterization of service no less favorable than under honorable conditions (general). His chain of command recommended approval. 12. On 24 December 1987, subsequent to a review for legal sufficiency and consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of chapter 14 of AR 635-200 with his service characterized as under honorable conditions (general). The applicant was discharged accordingly on 29 December 1987. 13. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged for misconduct, abuse of illegal drugs (Separation Code JKK), under the provisions of AR 635-200, paragraph 14-12c, with his service characterized as general, under honorable conditions. He completed 9 years, 5 months, and 19 days of net active service this period. 14. There is no indication he petitioned the ADRB for a review of his discharge within that board's 15-year statute of limitations. REFERENCES: AR 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 was 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. a. Paragraph 3-7a states 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. Paragraph 3-7b states 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 applicant's records show he committed a serious offense (wrongfully using illegal drugs) while holding an NCO grade. 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. 2. He used drugs (marijuana and cocaine) on more than one occasion. He was counseled and received NJP in an effort to rehabilitate and teach him but that failed. He was also twice referred to ADAPCP for screening in an effort to correct his behavior but that also failed. 3. His discharge was appropriate because the quality of his service was not consistent with acceptable personal conduct and performance by Army personnel. His misconduct and failure to respond positively to counseling by his chain of command diminished the quality of his service. His continued drug abuse left the command with no option but to eliminate him from the service. 4. The applicant's service did not meet the criteria for a fully honorable 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) AR20150012523 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012523 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2