IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20080003922 


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 discharge.

2.  The applicant states that he loves his country and that he served to the best of his ability; however, during a health and welfare inspection, his roommate had drugs in the room and that they were both blamed for the possession.

3.  The applicant did not provide any additional documentary evidence 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 records show that he enlisted in the Regular Army for a period of 4 years on 26 June 1985.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 19D (Cavalry Scout).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant’s awards and decorations include the Army Service Ribbon; the Overseas Service Ribbon, the Army Achievement Medal (2nd Award), the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  His records do not show any significant acts of valor during his military service.   

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 4 September 1987, for wrongfully using marijuana, on or about 23 June 1987.  His punishment consisted of reduction to private first class (PFC)/E-3 (suspended for 180 days), forfeiture of $404.00 pay per month for two months, 45 days of restriction, and 45 days of extra duty; and

	b.  on 17 December 1987, for being drunk and disorderly; for using language which conduct was of a nature to bring discredit upon the Armed Forces; and for orally communicating to other passengers and in the presence of children under the age of 16, certain indecent language, on or about 30 October 1987.  His punishment consisted of reduction to private (PV2)/E-2, forfeiture of $250.00 pay per month for two months, 45 days of restriction, and 45 days of extra duty.  

5.  On 5 January 1988 (erroneously shown as 1987), the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations), for misconduct.

6.  On 6 January 1988, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by an administrative separation board, waived personal appearance before an administrative board, and elected not to submit a statement on his own behalf.

7.  On 6 January 1988, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 due to a pattern of misconduct and abuse of illegal drugs.  The immediate commander further remarked that the applicant committed serious misconduct as documented by his two Field Grade Article 15s for use of marijuana; and being drunk and disorderly, and using indecent language.  

8.  On 6 January 1988, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant.  The immediate commander cited the two instances of nonjudicial punishment as the reason for the bar.  The applicant was furnished a copy of the bar certificate; however, he elected not to submit a statement on his own behalf.  The approval authority, the battalion commander, subsequently approved the bar on 8 January 1988. 

9.  On 12 January 1988, the applicant’s intermediate commander recommended approval of the applicant’s discharge with a General Discharge Certificate. 

10.  On 13 January 1988, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200, by reason of misconduct - abuse of illegal drug, and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 25 January 1988.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with a characterization of service of under honorable conditions.  This form further confirms he completed a total of 2 years and 7 months of creditable military service.

11.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.

12.  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.

13.  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.  The evidence of record shows that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His record of service shows he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ on two occasions, one of which was for wrongfully using marijuana.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge.

2.  All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



								XXX
      _______________________
      	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)                                         AR20080003922



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ABCMR Record of Proceedings (cont)                                         AR20080003922



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