BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20160004214 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: 19 October 2017 DOCKET NUMBER: AR20160004214 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: 19 October 2017 DOCKET NUMBER: AR20160004214 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 honorable conditions (general) character of service to honorable. 2. He states he failed one urinalysis test and he was discharged unfairly and unjustly. He did not receive treatment or counseling for his first-time offense. He did not receive the opportunity to appeal the discharge decision. He received an Article 15 accompanied with severe punishment, which included a reduction in rank, restriction, extra duty, and forfeiture of pay for 45 days. 3. He provides: * two DA Forms 4856 (General Counseling Form) * DA Form 638-1 (Recommendation for Award), dated 30 July 1992 with Army Achievement Medal Certificate, dated 24 September 1992 * several administrative separation documents * 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 12 September 1991. 3. His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was assigned to Company D, Protrain, 1st Brigade, Fort Jackson, SC for Basic Combat Training on 20 September 1991. 4. He provided two undated counseling statements, which show he was assigned to basic combat training at the time of receipt. These counseling statements indicate that the applicant was highly motivated, performed well, and he was eager to be a Soldier. 5. His DA Form 2-1 shows: a. He was promoted to private (PV2)/E-2 on 12 March 1992. b. He was assigned to the 82d Airborne Division on or around 30 April 1992. c. He was promoted to private first class (PFC)/E-3 on 12 September 1992. 6. He provides a DA Form 638-1 and an Army Achievement Medal Certificate, which show Permanent Orders Number 34-20, published by 3rd Battalion, 505th Parachute Regiment, Fort Bragg, NC, on 24 September 1992 awarded him the Army Achievement Medal for achievement during the period 7 July 1992 through 28 July 1992. 7. On 18 December 1992, he accepted nonjudical punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine on or about 31 August 1992 and on or about 9 September 1992. The Article 15 contains the following information: a. Item 3 (Having been afforded the opportunity to counsel, my decisions are as follows) shows the applicant indicated he did not demand trial by court-martial; did not request a person to speak on his behalf; and would not present matters in defense, extenuation, and/or mitigation. b. Item 4a (In a closed hearing, having considered all matters presented in defense, mitigation, and/or extenuation, having been considered, the following punishment is imposed) shows he received a reduction in rank/grade from PFC/E-3 to private (PVT)/(E-1), a forfeiture of $392.00 per month for 2 months, and extra duty and restriction for 45 days. The applicant initialed the block indicating "I do not appeal." 8. On an unknown date, the applicant underwent a mental status evaluation. The behavioral health worker said the applicant had the mental capacity to understand and participate in the proceedings; was mentally responsible; met the retention requirements of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness); and there was no psychiatric illness found "other than cocaine abuse." The applicant was psychiatrically cleared for administrative action by the command. 9. On 8 February 1993, the company commander notified the applicant that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c (2), commission of a serious offense. Specifically, he cited the applicant receiving a Field Grade Article 15 for the wrongful use of cocaine as the basis for the discharge action. The commander requested waiver of the counseling and rehabilitation requirements. He opined that rehabilitation would not be in the best interests of the Army, as it would not produce a quality Soldier. 10. On 8 February 1993, the applicant acknowledged receipt of the discharge action. 11. On 8 February 1993, the applicant consulted with military counsel. After counsel advised him of the basis for the contemplated separation action and its effects and the rights available to him, he elected not to submit a statement in his own behalf. He acknowledged he understood that because he had less than six years active and/or Reserve military service at the time of separation, he was not entitled to have his case heard by an Administrative Separation Board. He further acknowledged he understood if he received a character of service, which was less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge. However, he understood that an act of consideration by either board did not imply that either Board would upgrade his discharge. 12. On 24 February 1993, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of a General Discharge Certificate. He also approved the request for the waiver of the counseling and rehabilitation requirements. 13. On 16 March 1993, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2) (misconduct – abuse of illegal drugs) with a under honorable conditions (general) character of service. His DD Form 214 shows he received credit for 1 year, 6 months, and 5 days of total active service. 14. There is no indication he applied to the ADRB 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. 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 abuse of illegal drugs. 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. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. b. 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 maintains he was unfairly and unjustly discharged for a one time positive urinalysis. Additionally, he maintains that he did not receive any treatment or counseling and he was denied the opportunity to appeal his discharge. 2. The evidence of record shows the applicant received NJP for wrongfully using cocaine on two occasions. He elected not to demand trial by court-martial, he did not request a person to speak on his behalf, and he elected not to present matters in defense, extenuation, and/or mitigation. His punishment consisted of reduced reduction in rank from E-3 to E-1, a forfeiture of $392.00 per month for 2 months, and extra duty and restriction for 45 days. He elected not to appeal. 3. He underwent a mental status evaluation and the mental health provider psychiatrically cleared him for administrative action by the command. There is no evidence and he did not provide any to show that he sought counseling and/or treatment for his drug problem. 4. On 8 February 1993, he consulted with military counsel and he acknowledged he understood that because he had less than six years active and/or Reserve military service at the time of separation, he was not entitled to have his case heard by an Administrative Separation Board. He elected not to submit a statement in his own behalf. 5. The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The separation authority determined his service did not rise to the level required for a fully 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) AR20160004214 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004214 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2