IN THE CASE OF:	  

		BOARD DATE:	        8 October 2009  

		DOCKET NUMBER:  AR20090007565 


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 1985 general discharge be upgraded to fully honorable.

2.  The applicant states his discharge is inequitable because it was based on one isolated incident during his more than 6 years of service with no other adverse actions.

3.  The applicant provides no additional evidence 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.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier on 15 February 1979.  Following completion of training he was assigned to a signal unit in Germany and by February 1981 had been promoted to pay grade E-4.  In October 1981 he executed a 4-year reenlistment contract.

3.  In December 1981 he was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for operating a passenger vehicle while drunk.  His punishment included reduction to pay grade E-3, which was suspended for 60 days.

4.  In February 1982 the applicant was reassigned to Fort Carson, Colorado.  He was awarded an Army Good Conduct Medal in April 1982 for the period 15 February 1979 to 14 February 1982.

5.  In May 1983 the applicant returned to Germany where he was assigned to a maintenance company.

6.  In January 1984 the applicant was punished under Article 15 of the UCMJ for using marijuana.  He was subsequently barred from reenlisting in March 1984.  In October 1984 he was punished under Article 15 of the UCMJ for drinking during a training exercise.  In April 1985 he was punished again under Article 15 of the UCMJ for using marijuana.  As a result of the various nonjudicial punishment (NJP) actions, the applicant was ultimately reduced to pay grade E-1.

7.  In April 1985 the applicant's unit commander initiated action to administratively separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct.  The unit commander cited the applicant's apathy toward controlling his use of alcohol and drugs and his multiple records of NJP as the basis for the recommendation.  The applicant acknowledged receipt of the proposed separation and offered no statements in his own behalf.

8.  On 15 August 1985 the appropriate separation authority approved the discharge and directed the applicant be discharged and that he receive a general under honorable conditions discharge.

9.  The applicant was discharged on 23 September 1985 under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct-drug abuse.  He had 6 years, 7 months, and 9 days of active military service.  His service was characterized as "under honorable conditions."

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

11.  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.

12.  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.  Contrary to the applicant's contention that his discharge was based on one isolated incident during his more than 6 years of service, the evidence shows he had no less than four records of NJP for alcohol or drug-related offenses.

2.  The fact that he received a general discharge is likely an indication that members of his chain of command considered his prior good service in deciding to issue him a general discharge rather than a discharge under other than honorable condition which is normally issued in such cases.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore 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)                                         AR20090007565



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ABCMR Record of Proceedings (cont)                                         AR20090007565



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