IN THE CASE OF:	

		BOARD DATE:	 25 September 2008 

		DOCKET NUMBER:  AR20080011565 


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 from general under honorable conditions to honorable. 

2.  The applicant states that his misconduct was related to an untreated substance abuse problem.  He also adds that he received an Article 15 for substance abuse and that his records were supposed to be sealed as a result of this Article 15.  This substance abuse caused him to be very wasteful in his finances among other things.  

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 3 years on 13 May 1986.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 31M (Multichannel Communications Systems Operator).  The highest grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records show that he was awarded the Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).  His records do not reveal any significant acts or achievements during his military service.

4.  On 12 February 1987, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana, on or about 2 December 1986.  His punishment consisted of reduction to private (PVT)/E-1, forfeiture of $329.00 pay for 2 months, and 45 days of extra duty.  He appealed his punishment on 12 February 1987 and was granted a reduction to the grade of private (PV2)/E-2 and a 90-day suspension of the forfeiture of $329.00 pay for 2 months.

5.  On 28 August 1987, the applicant was counseled by his team leader for writing a bad check at the Post Exchange.  He subsequently attended a check writing class at the Army Community Service (ACS), Fort Hood, Texas.

6.  On 12 February 1988, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his wrongful use of marijuana and writing bad checks.  The applicant was furnished with a copy of the bar but elected not to submit a statement on his own behalf.  The Bar to Reenlistment Certificate was subsequently approved by his battalion commander on 24 February 1988.

7.  On 6 April 1988, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of 14 days of extra duty and reduction to private (PV2)/E-2 (suspended for 90 days).

8.  On 20 April 1988, the applicant turned himself in to the Killeen, Texas, Police Department for writing bad checks.  His unit reported him confined in the hands of civil authorities.  He remained in that status until he returned to military control on 15 June 1988.  

9.  On 26 May 1988, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation (AR) 635-200 (Personnel Separations) for misconduct.  Specifically, the immediate commander cited the applicant’s use of marijuana, writing bad checks, and bar to reenlistment.

10.  On 8 June 1988, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct and its effect; of the rights available to him and the effect of any action taken by him in waiving his rights; and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant further elected not to submit a statement on his behalf.   

11.  On 10 June 1988, the applicant’s immediate commander initiated separation action against the applicant, in accordance with paragraph 14-12(b) of AR      635-200.  The immediate commander cited the specific reasons for the action as the applicant’s two Article 15s, his bad check writing, bar to reenlistment, and civilian confinement.  The immediate commander further remarked that the applicant failed to conform to proper military professional standards and that he was arrested and confined for theft by check.  The immediate commander further recommended a General Discharge Certificate.

12.  On 13 June 1988, the applicant’s intermediate commander recommended approval of the applicant’s discharge with a General Discharge Certificate. 

13.  On 17 June 1988, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of AR 635-200 by reason of patterns of misconduct, and directed he be furnished a General Discharge Certificate.  The DD Form 214 he was issued confirms he was discharged on 30 June 1988 with an Under Honorable Conditions character of service.  This form further confirms that the applicant completed 1 year, 11 months, and 23 days of creditable active military service and had 56 days of lost time.

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

15.  AR 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, to include abuse of illegal drugs, convictions by civil authorities, and desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  The separation reason in all separations authorized by this paragraph will be “misconduct.”  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.  

16.  AR 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 contends that his general discharge should be upgraded to honorable because his misconduct was related to an untreated substance abuse problem.  However, there is no evidence in the applicant’s records and the applicant did not provide any substantiating evidence to show his pattern of misconduct was related or the result of his substance abuse problem. 

2.  The applicant's record of service shows that he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ on two occasions, received a bar to reenlistment, and was counseled several times by members of his chain of command.  His 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.  The applicant’s repeated misconduct and failure to respond to counseling by members of the chain of command diminished the quality of his service.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant was discharged under the provisions of paragraph 14-12 of AR 635-200.  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

__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)                                         AR20080011565



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ABCMR Record of Proceedings (cont)                                         AR20080011565



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