IN THE CASE OF:
BOARD DATE: 6 November 2008
DOCKET NUMBER: AR20080013841
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 discharge under other than honorable conditions be upgraded to honorable.
2. The applicant states that his discharge was inequitable because it was based on one isolated incident. He points out that he served 7 years and was promoted to E-5.
3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).
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 applicants 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 applicants 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 on 23 June 1977 for a period of 3 years. He successfully completed basic training and advanced individual training in military occupational specialty (MOS) 76P (stock control supplyman). He attained the rank of sergeant on 23 February 1980. On 12 May 1980, he was honorably discharged for immediate reenlistment. He reenlisted on 13 May 1980 for a period of 6 years. He was awarded MOS 19E (M48-M60 armor crewman) effective 4 May 1981.
3. On 26 October 1984, nonjudicial punishment was imposed against the applicant for using marijuana. His punishment consisted of a reduction to E-4, a forfeiture of pay, restriction, and extra duty.
4. The facts and circumstances surrounding the applicants discharge are not contained in the available records. However, the applicants DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged under other than honorable conditions on 23 April 1985 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct (drug abuse). He had served a total of 7 years, 10 months, and 1 day of creditable active service.
5. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. Section III of chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense. The regulation states, in pertinent part, that abuse of illegal drugs is serious misconduct. It also states, in pertinent part, that first-time drug offenders, Soldiers in grades E-5 to E-9, will be processed for separation upon discovery of a drug offense. The issuance of a discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the member's overall record.
7. 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 members 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.
8. Army Regulation 635-200, paragraph 3-7b, provides 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
Evidence of record shows the applicant, who had attained the rank of sergeant, was discharged for misconduct due to commission of a serious offense (abuse of illegal drugs). In the absence of evidence to the contrary, it must be presumed that the applicants separation was administratively correct and in conformance with applicable regulations. Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service. As a result, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ 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) AR20080013841
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