IN THE CASE OF:	  

		BOARD DATE:	        07 OCTOBER 2008

		DOCKET NUMBER:  AR20080010028 


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 general discharge be upgraded to an honorable discharge. 

2.  The applicant essentially admits that he served his country with dishonor and disgrace, but that he is proud to be an American and proud to have had the opportunity to serve his country.  He also states that at the time, he was 19 years old and very frustrated being an aircraft mechanic getting stuck working in the motor pool on a daily basis.  He further states that during his entire time in service, he never had the opportunity to work on any aircraft, and that almost all of the repairs were subcontracted to civilians.  He continued by essentially stating that he is now 40 years old, married, and has three children and four grandchildren that he adores very much.  He also states, in effect, that he has worked hard over the last 20 years to improve his life in many ways, and he is not requesting that his discharge be upgraded for any type of military of government benefits other than when he dies, he may have the opportunity to be buried in a military cemetery.  

3.  The applicant provides an undated, self-authored letter and his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 military records show that he enlisted in the Regular Army on 27 August 1985.  He completed basic and advanced individual training and was awarded military occupational specialty 68G (Aircraft Structural Repairer).  He was then assigned to Fort Hood, Texas for what would be his first and only permanent duty station.

3.  On 9 March 1987, the applicant was counseled for essentially being stopped by a Texas State Police officer and found to be drinking an alcoholic beverage underage and while operating a vehicle.  

4.  On 3 December 1987, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.  His punishment consisted of an oral reprimand, reduction in rank and pay grade from specialist/E-4 to private first class/E-3, forfeiture of $200.00 pay per month for 2 months, and extra duty for 45 days.

5.  On 7 December 1987, a mental status evaluation was conducted on the applicant, and he was essentially cleared for any administrative action deemed appropriate by his command.

6.  On 15 December 1987, a Bar to Reenlistment Certificate was imposed on the applicant due to his positive urinalysis, NJP, and for scoring a 32 [out of a possible 100] on his Skill Qualification Test.  

7.  On 16 December 1987, the applicant's commanding officer notified him of his intention to initiate action which may result in his separation from, or retention in, the United States Army for misconduct under the provisions of Chapter 14 (Separation for Misconduct), Army Regulation 635-200 (Enlisted Personnel).  The specific allegations on which the proposed action was based on was the applicant's misconduct, abuse of illegal drugs, and drinking alcohol under the legal age.  He was also advised of his rights, which including consulting with counsel.

8.  On 27 January 1988, the applicant acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for misconduct/abuse of drugs under the provisions of Army Regulation 635-200 and its effects; of the rights available to him, and the effect of any action taken by him in waiving his rights.  He elected to waive his right to counsel and elected not to submit statements in his own behalf.  He also acknowledged that he understood that a general discharge under honorable conditions was the least favorable characterization of service he could receive, and understood that he could expect to encounter prejudice in civilian life if a general discharge was issued to him. 

9.  On 19 February 1988, the applicant's Bar to Reenlistment Certificate was reviewed, and it was recommended that it remain in effect.

10.  On 10 March 1988, the proper separation authority approved the applicant's discharge under the provisions of Paragraph 14-12c, Army Regulation 635-200, and directed that he be issued a General Discharge Certificate.  On 17 March 1988, the applicant was discharged accordingly.  Item 28 (Narrative Reason for Separation) of his DD Form 214 has an entry of "Misconduct – Commission of a serious offense."

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

12.  The applicant essentially admitted that he served his country with dishonor and disgrace, but that he is proud to be an American and proud to have had the opportunity to serve his country.  He also stated that at the time, he was 19 years old and very frustrated being an aircraft mechanic getting stuck working in the motor pool on a daily basis.  He further stated that during his entire time in service, he never had the opportunity to work on any aircraft, and that almost all of the repairs were subcontracted to civilians.  He continued by essentially stating that he is now 40 years old, married, and has three children and four grandchildren that he adores very much.  He also stated that he has striven the last 20 years to improve his life in many ways, and is not requesting that his discharge be upgraded for any type of military of government benefits other than when he dies, he may have the opportunity to be buried in a military cemetery.  

13.  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 included minor 

disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.  It also states, in pertinent part, that abuse of illegal drugs is a serious offense, and that Soldiers are subject to separation under this paragraph for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial.

14.  Army Regulation 635-200, paragraph 3-7a also provides, in pertinent part, 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.

15.  Army Regulation 635-200, paragraph 3-7b further provides, in pertinent part, that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge.


2.  The fact that the applicant essentially stated that he is only requesting that his discharge be upgraded so that he may have the opportunity to be buried in a military cemetery was noted.  However, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for veteran's benefits.  Additionally, as the applicant was issued a general discharge under honorable conditions (emphasis added), he should already be eligible for burial in national cemetery.  The applicant should contact the Department of Veterans Affairs (DVA) at (800) 827-1000 if he has any questions regarding his entitlement to veteran's benefits administered by the DVA.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  The applicant's record shows that he accepted NJP under Article 15 of the UCMJ for wrongfully using marijuana, and was counseled for essentially being stopped by a Texas State Police officer and found to be drinking an alcoholic beverage underage and while operating a vehicle.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout his separation process, regularity must be presumed in this case. 

5.  The applicant's entire record of service was considered.  However, the offenses committed by the applicant so far outweighs his record of military service that upgrade of his discharge cannot be justified.  In view of the foregoing, there is no basis for upgrading the applicant's general discharge to an honorable discharge.

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)                                         AR20080010028



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ABCMR Record of Proceedings (cont)                                         AR20080010028



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