IN THE CASE OF:	  

		BOARD DATE:	       26 March 2009

		DOCKET NUMBER:  AR20080017553 


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 discharge be upgraded to a honorable discharge.

2.  The applicant states that the discharge was unjust because he was given a choice of staying in the service or being discharged.  He also states that he was led to believe he would receive a honorable discharge. 

3.  The applicant provides no documentation 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 28 February 1979.  He completed training and was awarded military occupational specialty 16R (Short Range Gunnery Crewman).  

3.  The applicant progressed normally, reenlisted in October 1981, was promoted to sergeant, pay grade E-5, on 8 January 1982, and to staff sergeant, pay grade 
E-6, on 24 September 1984. 

4.  Between May and November 1985, he received several unfavorable counseling statements for misconduct and poor performance.

5.  On 11 December 1985, a mental status evaluation determined the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant had the capacity to understand and participate in the separation process.  He was mentally responsible, able to distinguish right from wrong and to adhere to the right.  The applicant was psychiatrically cleared for discharge.

6.  On 17 December 1985, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for using cocaine.  

7.  On 14 May 1986, the battery commander recommended that the applicant be separated for the use of illegal drugs and he was notified of the initiation action to eliminate him from the service.  

8.  The applicant consulted with counsel and waived his rights to have a board of officers consider his case unless he was going to be subject to a discharge under other than honorable conditions.  He did not submit statements in his own behalf but he did request representation by counsel.  He also acknowledged that he understood that there was no provision for automatically upgrading a discharge, that a discharge under other than honorable conditions could make him ineligible to receive benefits under state and Federal law and that he could expect to encounter substantial prejudice in civilian life because of a less than honorable discharge.    

9.  The discharge authority approved the separation recommendation and directed that the applicant be issued a general discharge.    

10.  On 9 June 1986 the applicant was separated with a general discharge under honorable conditions, due to misconduct-commission of a serious offense.

11.  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.  A discharge under other than honorable conditions is 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.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  The Manual for Courts-Martial authorizes a punitive discharge for any offense involving use or possession of illegal drugs or illegal use or possession of controlled substances. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that the discharge was unjust because he was given a choice of staying in the service or being discharged.  He was led to believe that the discharge would be honorable. 

2.  There is no documentation to support the applicant's contention and no rationale to support the implied conclusion that those alleged circumstances would warrant the requested relief.
 
3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  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.

6.  In view of the foregoing, there is no basis for granting the applicant's 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.




      _______ _   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)                                         AR20080017553



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ABCMR Record of Proceedings (cont)                                         AR20080017553



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