IN THE CASE OF:	  

		BOARD DATE:	       28 APRIL 2009

		DOCKET NUMBER:  AR20090001676 


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 an upgrade of his general discharge under honorable conditions.

2.  The applicant states, in effect, that he received a general discharge because he failed a drug test.  He was young and immature at the time and did not realize that this would follow him throughout his life.  He adds that he previously had two honorable discharges and was told his last discharge would automatically be upgraded to honorable.  He also states that he was assigned to a “HAWK” missile unit that was being phased out.  So he was stuck in a unit with no potential for promotion or other opportunities.  However, after his discharge, he made many changes in his life:  he has been drug-free for 15 years, held good jobs, attended seminary school, and he is waiting to be ordained.  He concludes that one drug incident during his military service was a wake-up call that turned his life around and he asks that this Board grant him an upgrade. 

3.  The applicant did not provide any additional documentary 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 records show he was born on 17 August 1961 and enlisted in the Regular Army at age 19, for a period of 4 years on 9 September 1980.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 16D (HAWK Missile Crewmember).  He also executed two 4-year reenlistments, on 1 April 1985 and on 4 August 1988.  The highest rank/grade he attained during his military service was specialist (SPC)/E-4.

3.  The applicant’s records also show he served in Germany from on or about 15 March 1982 to 3 April 1985 and on or about 25 September 1988 to 14 April 1992.  

4.  The applicant’s records further show he was awarded the Army Service Ribbon, the National Defense Service Medal, the Overseas Service Ribbon with Numeral 2, the Good Conduct Medal (2nd Award), the Army Achievement Medal (4th Award), the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), the Expert Marksmanship Qualification Badge with Grenade Bar, and the Sharpshooter Marksmanship Qualification Badge with Grenade Launcher Bar (M-203).  

5.  On 6 December 1985, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for operating a vehicle while drunk on or about 8 November 1985.  His punishment consisted of a reduction to private (PV1)/E-1, a forfeiture of $150.00 pay for 2 months, 45 days of restriction, and 45 days of extra duty. 

6.  On 6 November 1990, the applicant tested positive for marijuana during a unit drug test.

7.  On 5 March 1991, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for wrongfully using marijuana between the dates of 7 October and 6 November 1990.  His punishment consisted of a reduction to PV1, a forfeiture of $250.00 pay for 2 months, and 45 days of restriction. 

8.  On 28 January 1992, the applicant again accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for operating a passenger car while drunk.  His punishment consisted of a reduction to PV1, a forfeiture of $175.00 pay for 1 month, and 14 days of extra duty.

9.  On 9 March 1992, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations), for misconduct, commission of a serious offense.  Specifically, the immediate commander cited the applicant’s wrongful use of marijuana and operating an automobile while drunk.   

10.  On 12 March 1992, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived a personal appearance before an administrative separation board and elected not to submit a statement on his own behalf.

11.  The applicant further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

12.  On 16 March 1992, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct-commission of a serious offense.  

13.  On 16 March 1992, the applicant’s intermediate commander strongly recommended the applicant be separated from the Army for misconduct, commission of a serious offense and further recommended he receive a general discharge with an under honorable conditions characterization of service.  

14.  On 20 March 1992, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct, commission of a serious offense, and directed the applicant be furnished an under honorable conditions (general) discharge.  Accordingly, the applicant was discharged on 15 April 1992.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was separated with a general discharge.  This form further confirms he completed a total of 11 years, 7 months, and 7 days of creditable military service.
15.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15 year statute of limitations.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.

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.  

18.  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 Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharged should be upgraded.

2.  Contrary to the applicant’s contention that he was young and immature at the time, the evidence of records shows he was 19 years of age at the time of his enlistment, 25 years of age at the time of his first offense of operating a vehicle while drunk, 29 years of age at the time of his drug use, and 30 years of age at the time of his second offense of operating a vehicle while drunk.  The available evidence does not support the applicant’s contention that his pattern of misconduct was a result of his age.
3.  The available evidence does not support the applicant’s contention that he was told his discharge would automatically be upgraded.  The Army has never had a policy that calls for an automatic upgrade of a discharge as a result of the passage of time.  

4.  The applicant's conduct after discharge and his post-service employment and/or citizenship are commendable; however, they are not sufficiently mitigating for granting the relief requested.

5.  The evidence of record shows the applicant had a history of serious disciplinary problems including two instances of operating a vehicle while drunk and one instance of using drugs.  The evidence of record further shows the applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 

6.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20090001676



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001676



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1