IN THE CASE OF:	 

		BOARD DATE:	  	 9 December 2008

		DOCKET NUMBER:  AR20080014432 


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 under honorable conditions discharge be upgraded to an honorable discharge.  

2.  The applicant states that he would like his discharge upgraded from general to honorable because he was told, at the time of his separation, that his discharge would be upgraded if he remained an upstanding citizen.

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 9 September 1982 for a period of three years.  At the completion of one station unit training at Fort Sill, Oklahoma, he was awarded military occupational specialty 13B (canon crewman).  His highest grade attained was private first class, E-3.

3.  On 4 May 1984, the applicant's company commander recommended that he be barred from reenlistment.  The company commander stated that the applicant had displayed an apathetic attitude towards his duty performance since being assigned to his unit.  The company commander further stated that the applicant was notified that if his duty performance did not improve, he would be processed for elimination under the provisions of Army Regulation 635-200.  The bar from reenlistment was approved.

4.  The applicant tested positive for marijuana on 7 May 1984.  

5.  On 26 June 1984, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for knowingly and wrongfully using marijuana on or about 7 May 1984.  

6.  On 16 July 1984, the applicant's company commander notified him of his proposed recommendation to discharge him under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance and advised him of his rights.  

7.  On 18 July 1984, the applicant consulted with legal counsel and submitted statements in his own behalf.  He stated that he only had one Article 15 and had always tried to do a good job.  He also stated that it would be hard for him to get a good job if he had a general discharge.  

8.  The appropriate separation authority approved the separation action under the provisions of Army Regulation 635-200, chapter 13 and directed issuance of a General Discharge Certificate.  

9.  The applicant was discharged from active duty on 1 August 1984.  He completed 1 year, 10 months, and 23 days of active military service.

10.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

12.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

13.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation under the provisions of Army Regulation 635-200, chapter 13 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The applicant's service record shows he received one Article 15 for wrongfully using marijuana and a bar to reenlistment.  

3.  Considering the seriousness of the applicant's offense, it appears the chain of command determined that the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general under honorable conditions.  

4.  The applicant contended that he was told that his discharge would be upgraded to honorable if he remained an "upstanding citizen"; however,  there is no policy or regulation within the Army which allows automatic upgrading of discharges.

5.  There is no apparent error, injustice, or inequity on which to base recharacterization of his discharge to honorable.

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)                                         AR20080014432





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ABCMR Record of Proceedings (cont)                                         AR20080014432



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