RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 1 April 2008
DOCKET NUMBER: AR20080000465
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 that his current discharge is listed as general under honorable conditions.
3. The applicant provides a copy of his 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 applicants 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 applicants 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 9 October 1979. At the completion of basic training and advanced individual training, he was awarded military occupational specialty 13B (cannon crewman). He was promoted to sergeant on 3 September 1982.
3. On 22 March 1985, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using marijuana on or about 12 February 1985. His punishment consisted of a reduction to pay grade E-4; a forfeiture of $300.00 pay; and 45 days extra duty.
4. On 28 March 1985, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct-abuse of illegal drugs. He was advised of his rights. The applicant acknowledged notification of the separation action. He consulted with legal counsel and indicated that he submitted statements in his own behalf; however, his statements are not available.
5. On 15 April 1985, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct-abuse of illegal drugs with issuance of a General Discharge Certificate.
6. The applicant was discharged on 19 April 1985 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - drug abuse. He completed 5 years, 6 months, and 11 days of active military service during the period under review.
7. There is no evidence which indicates the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.
8. 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 Soldiers 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.
9. 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 members 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 AND CONCLUSIONS:
1. The evidence of record shows the applicant tested positive for marijuana on 22 March 1985 and received an Article 15 for this offense.
2. 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 recommendation of an honorable discharge.
3. Considering the seriousness of the applicant's offense, it appears that his service was appropriately characterized.
4. After review of the evidence of this case, it is determined that the applicant has not presented sufficient evidence which warrants changing his general discharge to an honorable discharge.
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
INDEX
CASE ID
AR
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.
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