IN THE CASE OF:	  

		BOARD DATE:	  	  13 August 2008

		DOCKET NUMBER:  AR20080009034 


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 under honorable conditions discharge be upgraded to an honorable discharge.  

2.  The applicant states that his service-connected disability was found after active duty.

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 16 June 1983.  At the completion of basic training and advanced individual training, he was awarded military occupational specialty 63B (light wheel vehicle mechanic).  He served in Germany from December 1983 to June 1985.  He was honorably released from active duty on 11 June 1985.  His highest grade held was specialist four, E-4.

3.  The applicant enlisted in the Regular Army again on 5 August 1986.  After completion of advanced individual training, he was awarded MOS 91D (operating room specialist).  He was reassigned to Germany in January 1987.

4.  The applicant tested positive for marijuana on 9 June 1987 and 16 July 1987.

5.  On 14 August 1987, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using marijuana.  

6.  On 13 September 1987, the applicant was apprehended by German Police for operating a motor vehicle without a valid operator’s license, drunken driving, and causing a traffic accident and fleeing the scene of the accident.  

7.  On 2 November 1987, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for operating a vehicle without a valid USAREUR (U.S. Army, Europe) operator’s license; operating a vehicle while drunk; and wrongfully leaving the scene of an accident without making his identity known.

8.  During October 1987 and December 1987, the applicant received adverse counseling statements for unsatisfactory performance, misconduct, being late for duty, and failure to attend group meetings at the counseling center.

9.  On 4 January 1988, 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.  

10.  The applicant acknowledged notification of the separation action, consulted with legal counsel, waived consideration of his case by an administrative separation board, and submitted statements in his own behalf.  The applicant stated, in effect, that he was under a lot of mental stress due to marital problems and the death of several close family members.

11.  On 19 February 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, abuse of illegal drugs with issuance of a General Discharge Certificate.

12.  The applicant was discharged on 10 March 1988 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - abuse of illegal drugs.  He completed 1 year, 7 months, and 6 days of creditable active service during the period under review and a total of 3 years, 7 months, and 2 days active military service.  

13.  There is no evidence which indicates the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.  

14.  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.

15.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant tested positive twice for the use of marijuana.  

2.  The applicant’s service record shows he received two Article 15s, one for wrongfully using marijuana.  

3.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general.  

4.  Although the applicant feels that he should have received an honorable discharge, his service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable discharge.

5.  There is no evidence of record which indicates the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting the applicant's request.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  ___xx___  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.




      _______ _   _______   ___
               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)                                         AR20080009034





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ABCMR Record of Proceedings (cont)                                         AR20080009034



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