IN THE CASE OF:	  

		BOARD DATE:	  21 October 2008

		DOCKET NUMBER:  AR20080011873


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 under honorable conditions discharge (GD) be upgraded to a fully honorable discharge (HD).

2.  The applicant states, in effect, that he is unable to be hired for a job with the Department of Veterans Affairs (VA) due to his GD and would like his discharge upgraded for this reason.

3.  The applicant refers to a VA claim number but provides no 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 record shows he enlisted in the Regular Army and entered active duty on 1 August 1984.  He successfully completed One Station Unit Training at Fort Leonard Wood, Missouri, and was awarded military occupational specialty (MOS) 12C (Bridge Crewman) on 29 November 1984.

3.  The applicant's record shows he was promoted to private/E-2 (PV2) on 21 February 1985, and that this is the highest rank he attained while serving on active duty.  It also shows that he was reduced to private/E-1 (PV1) for cause on 21 April 1986.

4.  The applicant's record further shows that during his active duty tenure he received the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, and Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

5.  The applicant's 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), on the following two separate occasions for the offenses indicated:  21 February 1986, for absenting himself from his place of duty; and 21 April 1986, for wrongfully using marijuana.  It also shows he received formal counseling by members of his chain of command on 9 separate occasions for a myriad of disciplinary infractions between 13 February and 31 March 1976.

6.  On 7 July 1986, the applicant was informed of his unit commander's intent to process him for separation under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of misconduct-commission of a serious offense (abuse of illegal drugs).  The unit commander cited the applicant's abuse of illegal drugs and minor disciplinary infractions as the basis for his action.

7.  On 8 July 1986, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, and of the rights available to him.

8.  On 28 July 1986, the separation authority approved the applicant's discharge and directed the applicant receive a GD.  On 11 August 1986, the applicant was discharged accordingly.  The separation document (DD Form 214) he was issued at the time shows he held the rank of PV1 and that he had completed a total of 2 years and 11 days of active military service.

9.  There is no indication that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 (Personnel Separations) 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, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Although an under other than honorable conditions discharge is normally appropriate for a Soldier discharged under this chapter, the separation authority may issue a GD or HD if warranted by the member's overall record of service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his discharge be upgraded in order to allow him to get a job with the VA was carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

3.  Further, the applicant's abuse of illegal drugs and other disciplinary infractions clearly diminished the overall quality of his service below that warranting a fully honorable discharge.  As a result, it is clear his overall record of service did not support the issue of an HD by the separation authority at the time of his discharge, nor does it support an upgrade at this late date.

4.  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.


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)                                         AR20080011873



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ABCMR Record of Proceedings (cont)                                         AR20080011873



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