IN THE CASE OF:	  

		BOARD DATE:	        19 August 2008

		DOCKET NUMBER:  AR20080008546 


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 that his general discharge, under honorable conditions be upgraded to honorable.

2.  The applicant states that he was young and immature and did not realize what he was doing when he got involved with the wrong crowd.

3.  The applicant did not provide 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.  On 17 December 1983, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 21 September 1984, he was discharged from the DEP and enlisted in the Regular Army for a period of
4 years.  He was 18 years old when he entered active duty.  He completed all training requirements and was awarded military occupational specialty 67C (Airplane Repairer).  He attained the grade of specialist four/E-4.
 
4.  On 25 August 1986, the applicant tested positive on a unit urinalysis for marijuana.

5.  On 27 October 1986, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 14 of Army Regulation 635-200 (Enlisted Personnel Separations) by reason of misconduct – commission of a serious offense for use of illegal drugs, with a general, under honorable conditions discharge.  The applicant consulted with legal counsel and did not submit a statement in his own behalf.

6.  On 24 November 1986, the separation authority waived further rehabilitative efforts, and directed that the applicant be discharged with a GD. 

7.  On 16 December 1986, the applicant was discharged by reason of misconduct – drug abuse after completing 2 years, 2 months, and 26 days of active military service.

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions and patterns of misconduct such as frequent incidents of a discreditable nature with civil or military authorities, commission of a serious offense, and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

10.  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 discharge proceedings were conducted in accordance with law and regulations applicable at the time and he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to have jeopardized his rights.  

2.  At the time of his offense, the applicant was 20 years old.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Further, the applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the special trust and confidence placed in a Soldier.  The applicant had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career and this misconduct diminished the quality of service below that meriting a fully honorable discharge.  

3.  The character of the applicant's discharge is commensurate with the applicant's overall record of military service.  As such, the quality of his service was not consistent with the Army's standard for acceptable personal conduct and performance of duty by military personnel.  Therefore, there is no justification to change the applicant's characterization of service to honorable.

4.   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 any evidence that would satisfy this requirement.

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)                                         AR20080008546



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ABCMR Record of Proceedings (cont)                                         AR20080008546



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