IN THE CASE OF:	 

		BOARD DATE:	      2 APRIL 2009

		DOCKET NUMBER:  AR20090000921 


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 other than honorable conditions, discharge be upgraded to honorable. 

2.  The applicant states he was a good Soldier who made a terrible mistake.  He believes he should be forgiven for his mistake. 

3.  The applicant does not provide any evidence 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’s record shows he enlisted in the Regular Army and entered active duty on 30 June 1978.  He was trained in and awarded military occupational specialty (MOS) 31C (Single Channel Radio Operator).
3.  On 13 June 1986, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of 14 days of extra duty.

4.  On 14 August 1986, nonjudicial punishment was imposed against the applicant for wrongfully using marijuana between 17 May 1986 to 27 May 1986; for wrongfully using cocaine between 17 May 1986 to 27 May 1986; and for wrongfully using marijuana between 13 June 1986 and 23 June 1986.  His punishment consisted of reduction to the grade of E-4, forfeiture of $494.00 for a period of two months, and 45 days of extra duty.

5.  On 1 September 1986, a DA Form 4126-R (Bar to Reenlistment Certificate) was approved on the applicant.  The company commander cited the applicant's two Article 15s as justification for the bar to reenlistment.

6.  On 20 August 1986, the applicant underwent a mental status evaluation.  The psychiatrist found that during his evaluation the applicant's behavior was normal, he was fully alert and fully oriented, his mood was unremarkable, thinking process was clear, and his thought content was normal.  As a result, the psychiatrist opined that the applicant had the mental capacity to understand and participate in Board proceedings, he was mentally responsible, and he met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness).

7.  On 21 August 1986, the unit commander notified the applicant of his intent to recommend that he be separated from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 12c, for misconduct.  He cited the two positive urine specimens the applicant provided on 27 May 1986 and 23 June 1986 as justification for the discharge.  The commander advised the applicant of his rights and stated that he may receive an under other than honorable conditions discharge.

8.  On 21 August 1986, the applicant acknowledged receipt of the discharge action.  He indicated that he did not desire to consult with counsel, submit statements in his behalf, or desire a hearing before an administrative board. 

9.  On 28 September 1986, the unit commander recommended that the applicant be separated for misconduct under the provisions of Army Regulation 635-200, chapter 14-12c.  He stated that the applicant had not displayed the level of maturity, self-discipline, and sound judgment expected of a professional Soldier.  He cited the applicant's two positive urinalyses and opined that his behavior constituted serious misconduct that could not be tolerated.  

10.  The intermediate commander recommended approval of the discharge action.  He recommended that the applicant be issued a General Discharge Certificate.

11.  On 29 September 1986, the legal advisor reviewed the applicant's discharge proceedings and determined that the file was legally sufficient.

12.  On 14 October 1986, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, and its effects and the rights available to him, he waived his right to consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than a general, under honorable conditions.  He also elected not to submit statements on his behalf. 

13.  On 15 October 1986, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, by reason of commission of a serious offense – abuse of illegal drugs.  He directed that the applicant be furnished a General Discharge Certificate.

14.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged on 29 October 1986 under the provisions of Army Regulation 635-200, paragraph 14-12c, Section III for misconduct, with a characterization of service of general, under honorable conditions.  The applicant was credited with 8 years, 3 months, and 29 days of active service. 

15.  There is no indication in the record that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within the 15-year statute of limitations of that board.  

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14-12 establishes policy and prescribes procedures for separating members for acts or patterns of misconduct.  Paragraph 14-12c states that specific categories of commission of a serious military or civil offense include abuse of illegal drugs.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Additionally, paragraph 14-3 states that an under other than honorable discharge certificate is normally appropriate for a member who is discharged for acts and patterns of misconduct.


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

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of service.  

2.  The applicant must provide evidence to prove that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

3.  The applicant’s record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge on the basis that "he made a terrible mistake and should be forgiven."

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)                                         AR20090000921



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000921



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1