IN THE CASE OF:	  

		BOARD DATE:	          20 August 2009

		DOCKET NUMBER:  AR20090006316


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 it has been 18 years since his separation from the service and he would like to have his discharge upgraded.  He further states he made some mistakes, but served honorably.

3.  The applicant provides no additional documentation in support of this case.

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 (RA) on 25 July 1989 and successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  On 23 February 1991, the applicant, contrary to his plea, was convicted by a summary court-martial of assaulting a noncommissioned officer (NCO).  His sentence consisted of confinement for 30 days and reduction to the rank/grade of private (PV1)/E-1.

4.  On 26 April 1991, the applicant was listed as the subject on a Report of Investigation (ROI) by the U.S. Army Criminal Investigation Command. The ROI stated he sold an undercover drug suppression team (DST) member an amount of marijuana.  Thus, he was cited for possession and wrongful distribution of marijuana.

5.  On 15 May 1991, the applicant’s commander initiated elimination action against the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct -commission of a serious offense.  The reasons cited by the commander were the applicant's conviction for committing assault and the charge for wrongfully possessing and distributing marijuana.

6.  On 16 May 1991, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant was advised that he could receive an under other than honorable conditions discharge and he was advised of all of his rights.  The applicant requested counsel, waived his right to be heard by a board of officers, and did not submit a statement in his own behalf.

7.  On 10 June 1991, the appropriate authority approved the elimination packet and directed the applicant receive a general, under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct - abuse of illegal drugs.  On 21 June 1991, the applicant was separated from the service, in pay grade E-1, after completing 1 year, 10 months, and 2 days of creditable active service with 27 days of lost time due to confinement.



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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a 
pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and conviction by civil authorities.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

10.  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.  The applicant's records show that he received a summary court-martial conviction for assaulting an NCO and that he wrongfully possessed and distributed marijuana to a DST undercover agent.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  In view of the above, there is no basis for granting the applicant's requested 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.



      ____________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)                                         AR20090006313



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ABCMR Record of Proceedings (cont)                                         AR20090006316



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