IN THE CASE OF: BOARD DATE: 2 February 2010 DOCKET NUMBER: AR20090013402 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 that his discharge be upgraded from under other than honorable conditions to an honorable discharge. 2. The applicant states, in effect, he completed drug rehabilitation and joined the New Birth Church/Family Health Center since his discharge from the military and has had no criminal record in the last five years. 3. The applicant provides no additional documentation in support of this case. 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 22 March 1977 and successfully completed basic training and advanced individual training. He was awarded military occupational specialty 11B (Infantryman). On 31 July 1978, the applicant was promoted to the grade of specialist four (SPC4)/E-4. On 8 January 1979, the applicant was honorably discharged and immediately reenlisted on 9 January 1979 for a 4-year term of service. 3. The applicant's discharge proceedings are not available. 4. The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process. However, his DD Form 214 DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 20 February 1985 shows that he was discharged on 20 February 1985 under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) by reason of "MISCONDUCT - PATTERN OF MISCONDUCT" at the grade of private (PVT)/E-1. His characterization of service was under other than honorable conditions after completing 6 years, 1 month, and 12 days of creditable active service for that term of service. 5. Army Regulation 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, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition is not the direct or substantial contributing cause of his misconduct. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 6. Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 7. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant's post-service conduct and achievement are noteworthy. However, good post service conduct and achievement alone are not a basis for upgrading a discharge and, upon review, the applicant's good post-service conduct and achievement are not sufficient to mitigate his indiscipline in the Regular Army. 2. Lacking evidence to the contrary, it is presumed that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process. Therefore, it is concluded that the applicant’s discharge was proper and equitable. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20090013402 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090013402 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1