BOARD DATE:	  14 October 2009

		DOCKET NUMBER:  AR20090007456 


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 1986 discharge under other than honorable conditions be upgraded.

2.  The applicant states that since his discharge he has been gainfully employed for 22 years, has not run afoul of the law, raised a family, paid his taxes and generally he has been an upstanding citizen.  He states that due to the downturn of the auto industry he is currently looking for work in the East Texas area but his other than honorable discharge has become a barrier to employment.  He notes that he would like to be gainfully employed, contribute to the community and become a productive citizen again and as such he asks that his discharge be upgraded.

3.  The applicant provides a copy of his 1979 DD Form 214 (Report of Separation from Active Duty) and a copy of his 1986 DD Form 214.

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.  Records available to the Board indicate the applicant served an initial period of active duty as a Regular Army enlisted Soldier between July 1975 and July 1979.  He attained the rank of specialist (E-4), was awarded an Army Good Conduct Medal, and his service was characterized as honorable.

3.  On 26 October 1982, the applicant enlisted and returned to military service in pay grade E-2.  Upon his enlistment he was assigned to Fort Riley, Kansas.  By November 1984 he had been promoted to pay grade E-5 and in 1985 he successfully completed the Primary Leadership Development Course.

4.  On 12 September 1985, he was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for failure to repair and as a result was ultimately reduced to pay grade E-4 when his suspended punishment was vacated.  On 
17 September 1985, he was punished under Article 15 of the UCMJ for using marijuana and he was subsequently reduced to pay grade E-1 after being punished a third time under Article 15 of the UCMJ in April 1986 for using marijuana.

5.  On 12 May 1986, the applicant’s unit commander notified him that he was initiating action to administratively discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 
14-12c (misconduct-drug abuse).  The applicant acknowledged receipt of the proposed separation, including the ramifications of receiving a discharge under other than honorable conditions, consulted with counsel, and submitted a statement in his own behalf.

6.  On 29 May 1986, the appropriate separation authority approved the discharge and directed the applicant’s service be characterized as under other than honorable conditions.

7.  On 17 June 1986, prior to the execution of the discharge, the applicant was reported as being absent without leave (AWOL).  On 7 July 1986, his discharge was executed in absentia.

8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, 
and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  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.

9.  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.  

10.  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’s good post-service conduct, while certainly commendable, is not sufficiently mitigating to warrant the relief requested.  The fact that he served so many years without incident is evidence the applicant was more than capable of honorable service and he has not provided any evidence which would serve as a basis to excuse his behavior.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

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

4.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.  

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 the aforementioned 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)                                         AR20090007456



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ABCMR Record of Proceedings (cont)                                         AR20090007456



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