IN THE CASE OF:	  

		BOARD DATE:	  21 April 2009

		DOCKET NUMBER:  AR20090000151 


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 be upgrade to honorable.

2.  The applicant states, in effect, the reason given for his discharge was unsatisfactory performance which is not true.  It should be unsatisfactory behavior.  He states he was the best enlisted Soldier in Company C, 1st Battalion, 40th Armor.  He further states this was over 23 years ago and he was very young.  He feels he was not given proper counseling for rehabilitation or any options.  No one offered to help him help himself and he finds it unfair as well as unjust.  He requests the Board to consider the circumstances and to read about his accomplishments in less than 2 years.

3.  The applicant submits no documentary evidence in addition to his DD Form 149 (Application for Correction of Military Record) in support of his request.

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 evidence shows the applicant enlisted in the U.S. Army Reserve Delayed Entry/Enlistment Program on 6 January 1983.  The applicant enlisted in the Regular Army on 6 June 1983.  On the date of his enlistment in the Regular Army, the applicant was over 19 years and 4 months of age (date of birth:  5 January 1964).

3.  The applicant successfully completed one station unit training at Fort Knox, Kentucky.  On completion of his training, he was awarded military occupational specialty 19E (M48-M60A1/A3 Armor Crewman).

4.  The evidence shows the applicant was advanced to the rank/pay grade of private/E-2 on 2 December 1983.  This would be the highest rank/pay grade he would hold while in the Army.  The record contains no documentary evidence of acts of valor or achievement which warrant special recognition.

5.  On 15 November 1984, a bar to reenlistment was imposed upon the applicant for having received an Article 15 for violation of Article 112(a) of the Uniform Code of Military Justice (UCMJ), the wrongful use of a controlled substance.  In the non-judicial punishment action, the applicant was reduced to pay grade E-2 (although there is no evidence that he held a higher rank/pay grade at any time) and was required to forfeit $334.00 pay per month for 2 months.  A copy of this Article 15 punishment record is not on file in the applicant's service personnel record for the Board's review.  The applicant acknowledged he had been counseled and advised of the basis for the bar to reenlistment on 19 November 1984.

6.  On 3 December 1984, the applicant's commander notified him he was initiating action to eliminate him from the service prior to the expiration of his term of service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13.  The specific reason was unsatisfactory performance – the applicant had been caught twice with marijuana and was to be eliminated from the Army due to his continue noncompliance with military laws.

7.  The evidence shows the applicant was counseled on 5 December 1984 about having tested positive for the wrongful use of a controlled substance, marijuana.  He was advised he would be recommended for a field grade Article 15 for this violation of the UCMJ.

8.  A mental status evaluation was conducted on 7 December 1984.  The applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or effect was unremarkable, his thinking process was clear, and his thought content was normal.  The evaluating psychiatrist, an Army Medical Corps officer, found the applicant able to meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  The applicant was cleared for any administrative action deemed appropriate by command.

9.  On 7 December 1984, the applicant received field-grade non-judicial punishment under the provisions of Article 15 of the UCMJ for wrongfully possessing some amount of a controlled substance, marijuana, on 3 December 1984.  The imposed punishment was a reduction to pay grade E-1, forfeiture of $298.00 pay per month for 2 months, and extra duty until 19 January 1985.  There is no evidence in the applicant's service personnel file he appealed the punishment.

10.  The applicant acknowledged the notification of the separation action on 12 December 1984.  The applicant elected not to submit a statement in his own behalf.  The evidence shows the applicant was provided legal counsel by a major of the Army Judge Advocate General Corps.

11.  On an unspecified date, the applicant's commander recommended he be eliminated from service before the expiration of his term of service for having been caught twice with marijuana and for his continued noncompliance with military laws.

12.  On 19 December 1984, the approval authority approved the applicant's separation from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He directed the applicant be issued a general, under honorable conditions discharge.

13.  The evidence shows the applicant was discharged in the rank and pay grade of private/E-1 on 9 January 1985 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  On the date of his discharge, the applicant had completed 1 year, 7 months, and 8 days of total active military service with no days of time lost.

14.  Item 13 of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded the Army Achievement Medal, the Army Service Ribbon, the Parachutist Badge, and the Marksman Marksmanship Qualification Badge with Pistol Bar (.45 caliber pistol).  Neither a copy of the orders awarding the applicant the Army Achievement Medal nor the citation for the Army Achievement Medal are in his service personnel record nor on his micro-fiche record for the Board's review.

15.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-200 in effect on the date of the applicant's discharge set policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons.  The service of members separated because of unsatisfactory performance was characterized as honorable or under honorable conditions as warranted by their military record.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  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 has provided insufficient evidence to show his discharge was in error or unjust.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

3.  The evidence of record shows the applicant was twice punished for wrongfully using a controlled substance, marijuana.  He was barred from reenlistment and recommended for elimination from the Army for his continued non-compliance with military law.

4.  The overall quality of the applicant's service was considered.  The highest documented rank and pay grade he achieved while he was in service was private/E-2.  His record contains no documentary evidence of acts of valor or achievement that would warrant special recognition and an upgrade of his general, under honorable conditions, discharge.  It appears the applicant received an Army Achievement Medal while he served; however, neither a copy of the award authority nor the citation for this award are on file in his service personnel records or in his microfiche record.

5.  The applicant's contention that his youth and immaturity impacted his ability to serve successfully is without merit.  The applicant was over 19 years and 4 months of age on the date of his enlistment in the Regular Army.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.

6.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his general, under honorable conditions, discharge to an honorable discharge.

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)                                         AR20090000151



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ABCMR Record of Proceedings (cont)                                         AR20090000151



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