IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20080002352 


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, in effect, an upgrade of his general discharge to an honorable discharge. 

2.  The applicant states, in effect, that he has grown older now and has learned a valuable lesson.  He also states that he has held jobs which required urine samples and he has held his latest job for 16 years.  He knows the difference between right and wrong.  He would really like to have his discharge upgraded.

3.  The applicant provides no additional documentation in support of his application.

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's military record shows that he enlisted in the Regular Army, in pay grade E-1, on 29 July 1982, for 3 years.  On the date of his enlistment in the Regular Army, the applicant was 18 years and 2 months of age.  He completed training as a defense acquisition radar operator.  He was promoted to pay grade E-3 on 1 April 1983.

3.  The applicant's military record also shows that he was reduced to pay grade E-1 on 14 November 1983, as a result of an Article 15.   All the documents containing the facts and circumstances surrounding his reduction are not present in the available records.  

4.  The applicant's record contains a DA Form 4856 (General Counseling Form), dated 31 July 1984, that shows he received monthly counseling for the month of July 1984.  He was advised that his job performance had been adequate; however, he needed to show more initiative in the undertakings he had been assigned and he must keep on striving to do better.  He also received a DA Form 4856, dated 30 August 1984, that shows he received monthly counseling for August 1984.  In this counseling he was advised that he needed to show a little more motivation in his job performance and must strive to improve in all areas of his job.

5.  The applicant was promoted to pay grade E-2 on 1 September 1984.

6.  On 23 October 1984, the applicant accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for the wrongful use of some amount of marijuana between 5 and 15 October 1984.  His punishment included reduction to pay grade E-1, forfeiture of $298.00 pay per month for two months, and 45 days extra duty.

7.  On 4 December 1984, the applicant was psychiatrically cleared for any administrative action deemed appropriate by his command.

8.  On 11 December 1984, the applicant's commander recommended he be barred to reenlistment based on punishment under Article 15 on 14 November 1983, resulting in his reduction from pay grade E-3 to pay grade E-1; and punishment under Article 15 on 23 October 1984, for the wrongful use of marijuana, resulting in his reduction to pay grade E-1, a forfeiture of pay, and extra duty.  

9.  On 17 December 1984, the applicant's commander notified him of his intentions to initiate action to eliminate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12.


10.  On 17 December 1984, the applicant acknowledged, through counsel, the contemplated action to separate him for misconduct – abuse of illegal drugs.  He elected not to submit a statement in his own behalf.  He also elected not to have his case heard before a board of officers and waived personal appearance before an administrative separation board.
 
11.  On the same day, the applicant's commander initiated action to discharge him from the service under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c & d, prior to the expiration of his term of service.  The commander stated that the recommendation was based on the applicant's pattern of serious misconduct which was prejudicial to good order and discipline in the Armed Forces as evidenced by the Article 15, dated 23 October 1984, he received for the wrongful use of a controlled substance.  The commander also stated the applicant's lack of desire to perform his duties effectively and demonstrated lack of potential for advancement or leadership was evident.  The applicant's lack of motivation for rehabilitation was evident by his continued use of illegal drugs.  The commander further stated that the applicant's past history had shown he had no intention of conforming to military standards and for that reason it was in the best interest of the US Army to eliminate this servicemember.

12.  On 26 December 1984, the appropriate separation authority approved the discharge and specified the issuance of a General Discharge Certificate.

13.  The applicant was discharged on 25 January 1985, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 14, Misconduct – Drug Abuse.  He was credited with 2 years, 5 months, and 27 days total active service. 

14.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

15.  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.  Paragraph 14-12c specified commission of a serious offense and paragraph 14-12d specified abuse of illegal drugs.  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.

16.  Paragraph 14-12(2)d of this regulation also provided for the separation of Soldiers for commission of a serious offense, such as the abuse of illegal drugs.  It provided that individuals identified as first time drug abusers, grades E-5 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.

17.  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 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.  

2.  The applicant's contentions that he has grown older and would really like his discharge upgraded is without merit.  The applicant was 18 years and 2 months of age on the date of his enlistment in the Regular Army.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  

3.  The evidence of record shows the applicant was punished twice for the wrongful use of marijuana and he was barred to reenlistment.  Therefore, his misconduct diminished the quality of his service below that meriting a fully honorable discharge.  The applicant was properly separated for misconduct for drug abuse and he has submitted neither probative evidence nor a convincing argument in support of his request.  

4.  The evidence of record shows the applicant's command recommended he be separated with a general discharge instead of a discharge under other than honorable conditions, which was normally considered appropriate at the time.  The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

6.  In view of the foregoing, there is no basis for granting the applicant's request based on his desire to proudly display 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
      
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)                                         AR20080002352



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1


ABCMR Record of Proceedings (cont)                                         AR20080002352


4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1