IN THE CASE OF:	  

		BOARD DATE:	        15 OCTOBER 2008

		DOCKET NUMBER:  AR20080012390 


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 (GD), under honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that it has been 4 years since his discharge and he has been working and going to college. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a letter showing he works part time; and 6 letters of support from his professors at Santa Monica Community College.

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 9 March 2001, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 20 March 2001, he was discharged from the DEP and enlisted in the Regular Army for 4 years.  He completed the training requirements and was awarded military occupational specialty 19 K (M1 Armor Crewman).  
 
3.  The applicant's records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following 2 separate occasions for the offenses indicated:  12 June 2003, for being drunk and disorderly, and on 2 March 2004, for wrongfully using marijuana.

4.  On 25 March 2004, 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, paragraph 14-12c by reason of misconduct – commission of a serious offense.  He indicated that he was initiating separation action because the applicant was involved in a fight with another Soldier and received NJP for being drunk and disorderly.  He also tested positive for marijuana which resulted in a Field Grade Article 15.  He recommended the applicant receive a GD.

5.  On 30 March 2004, the applicant consulted with legal counsel and did not submit a statement in his own behalf.  He indicated that he understood that he may expect to encounter substantial prejudice in civilian life if a GD was issued to him.  

6.  On 6 April 2004, after reviewing the separation proceedings, the separating authority approved the applicant's discharge and directed he be discharged with a GD.

7.  On 16 April 2004, the applicant was discharged by reason of misconduct with a GD.  He was credited with completing 3 years and 27 days of active duty.

8.  The applicant submitted a letter from the Office Manager, Larchmont Data, Inc., which confirms that he has worked part-time at Larchmont Data, Inc., since 1 August 2004.

9.  The applicant submitted 6 letters from professors at Santa Monica Community College, the professors indicated that the applicant was enrolled in classes at the college between 2004-2005.  


10.  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.  
  
11.  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.

12.  On 31 August 2005, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge and unanimously denied his request. 

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.  The applicant received NJP on 2 occasions.  By violating the Army's policy not to possess or use illegal drugs, the applicant 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 ADRB considered the applicant's request for an upgrade of his discharge and unanimously determined that his misconduct diminished the quality of his service below that meriting an honorable discharge.

4.  The applicant's supporting evidence was carefully considered; however, post-service conduct is not a basis upon which to grant a change in the type of discharge the applicant received. 
5.  Given the above, the character of the applicant's discharge is commensurate with his overall record of military service.  Inasmuch as an under other than honorable conditions discharge is normally considered appropriate due to the applicant’s misconduct, the applicant’s command gave a fair assessment of his overall length and quality of service and determined that he deserved a GD.  

6.  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 and there is no basis upon which to grant his request.

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.




      _______ _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)                                         AR20080012390



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ABCMR Record of Proceedings (cont)                                         AR20080012390



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