IN THE CASE OF:	 

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20080005723 


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, that his discharge should be upgraded.

2.  The applicant states, in effect, that his general under honorable conditions discharge should be changed to honorable.

3.  The applicant provides no additional documentary evidence in support of this 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 are incomplete; however, there is sufficient evidence available to show that he enlisted in the Regular Army on 2 December 1981 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 71M (Chapel Activities Specialist).  On 24 October 1984, the applicant was honorably discharged for the purpose of immediate reenlistment.  On 25 October 1984, the applicant reenlisted in the Regular Army.

3.  On an unknown date, the applicant tested positive for cocaine.

4.  The record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine between 14 September 1987 and on or about 14 October 1987.  His punishment consisted of reduction to the rank of private first class/pay grade E-3 (reduction suspended until 28 May 1988), forfeiture of $437.00 pay per month for 2 months, extra duty for 45 days, and restriction for 45 days.  The suspension was vacated on 10 December 1987.

5.  On 8 August 1988, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for assault upon another Soldier by striking him in the face and leg with a dangerous weapon (aluminum bat), with the means likely to produce death or grievous bodily harm.  His punishment consisted of reduction to the rank of private/pay grade E-2, forfeiture of $175.00 ($125.00 suspended to 3 February 1989), extra duty for 14 days, and restriction for 14 days.

6.  On 28 September 1988, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct - commission of a serious offense.  He was advised of his rights.  The applicant acknowledged notification of separation action.  He waived his right to consult with legal counsel and did not submit a statement in his own behalf.

7.  On 29 September 1988, the intermediate commander concurred with the recommendation to separate the applicant under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - drug abuse.

8.  On 5 October 1988, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense with issuance of a General Under Honorable Conditions Discharge Certificate.

9.  The applicant's DD Form 214 shows he was discharged on 13 October 1988 under the provisions of Army Regulation 635-200, paragraph 14-12c.  He completed 6 years, 10 months, and 12 days of net active service for this period under review.
10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 chapter 14 for misconduct.

11.  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 (emphasis added), 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 applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  Although the applicant's service records are incomplete, evidence of record clearly shows that he accepted non-judicial punishments for drug use and aggravated assault on another Soldier.  Additionally, his records do not show any significant acts of valor.

3.  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 recommendation of an honorable discharge, but it was sufficient to warrant a general discharge.

4.  In the absence of evidence to the contrary, it is determined that all the requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  The applicant has failed to show through the evidence submitted, or the evidence available, that the type of discharge issued to him was in error or unjust. Accordingly, the type of discharge directed and the reasons for discharge are appropriate considering all the facts of the case.  As a result, there is no basis to amend the applicant's separation document as requested.

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)                                         AR20080005723





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ABCMR Record of Proceedings (cont)                                         AR20080005723



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