RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2008
	DOCKET NUMBER:  AR20070015929 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


x

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his discharge should be upgraded to honorable.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).  

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 3 June 1983.  He completed basic training and advanced individual training and was awarded military occupational specialty 94B (cook).  He was promoted to specialist four on 3 June 1985.  

3.  On 18 October 1988, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine between 19 July 1988 and 18 August 1988.  His punishment consisted of a reduction to pay grade E-1; a forfeiture of $335.00 pay for 2 months; extra duty for 45 days; and restriction for 45 days. 

4.  A bar to reenlistment was imposed against the applicant on 20 October 1988 for his record of NJP received on 18 October 1988.

5.  On 24 October 1988, the applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-200, chapter 14 for commission of a serious offense.  He was advised of his rights.  The applicant acknowledged notification of separation action, consulted with legal counsel, and did not submit statements in his own behalf.  

6.  On 19 November 1988, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct – pattern of misconduct with issuance of a General Discharge Certificate.

7.  The applicant was discharged from active duty on 21 December 1988.  He completed 2 years, 8 months, and 5 days of active military service during the period under review and a total of 5 years, 6 months and 19 days of active military service.  

8.  There is no evidence which indicates the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.  

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

10.  Army Regulation 635-200 governs the separation of enlisted personnel.  In pertinent part, it states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier'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.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant’s service records show he was recommended for discharge under the provisions of Army Regulation 635-200, chapter 14 for commission of a serious offense, the separation authority approved the discharge for a pattern of misconduct.  It appears that this may have been an error.  

2.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The applicant’s service records show he received an Article 15 for wrongfully using cocaine and he had a bar to reenlistment.

4.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under chapter 14 for misconduct.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable discharge, but it was sufficient to warrant a general discharge.

5.  The applicant has failed to show through the evidence submitted or the evidence of record that the type of discharge issued to him was in error or unjust.

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.



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          CHAIRPERSON


INDEX

CASE ID
AR20070015929
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.