BOARD DATE:	  10 November 2009

		DOCKET NUMBER:  AR20090008558 


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 upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states that he made a young and foolish mistake, which he deeply regrets.  He also states that other Soldiers who made the same mistake were not penalized as harshly as he was.  The applicant contends that he has learned many lessons the hard way and he is more mature now.  The applicant continues that he needs medical assistance and he was unaware of the records correction process until he visited the Department of Veterans Affairs (DVA) Medical Center located in Sepulveda, CA on 16 April 2009.  The applicant concludes that his father is an honorably discharged veteran who will vouch for him upon request.

3.  The applicant provides no documentary evidence in support of this 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 that he was born on 11 March 1966.  The applicant enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP) on 28 December 1987.  On 1 March 1988, he was discharged from the USAR DEP and he enlisted in the Regular Army (RA) on 2 March 1988, at the age of 21 years, 11 months, and 21 days.  He completed basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.  However, at the time of separation he held the rank/grade of private (PV1)/E-1.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions:  for stealing a box of condoms from the Fort Bragg, NC Main Exchange, and for wrongfully using cocaine.

4.  The applicant's record contains a DA Form 4126-R (Bar to Reenlistment Certificate) which shows a local bar to reenlistment was imposed upon the applicant on 7 July 1989 as a result of a positive urinalysis that indicated the applicant had illegally used cocaine.  This form also shows the applicant elected not to appeal the bar to reenlistment action.

5.  On 26 July 1989, the applicant’s unit commander notified him that he was initiating action which could result in his separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12b, for misconduct consisting of conduct prejudicial to good order and discipline.  The unit commander informed the applicant that his proposed separation could result in discharge, release from active duty to a reserve component, or release from custody and control of the Army.  The unit commander also informed the applicant that the least favorable characterization of service that he could receive was general, under honorable conditions.  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, to waive these rights in writing, and to withdraw his waiver of any of these rights at any time prior to the date the discharge authority directed or approved his separation.  On 26 July 1989, the 
applicant acknowledged receipt of the unit commander's notification.
6.  On 26 July 1989, the applicant’s unit commander recommended that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct - abuse of illegal drugs.  The commander cited the applicant's pattern of misconduct consisting of conduct prejudicial to good order and discipline as the specific factual reasons for this action.  The commander also noted the applicant's receipt of NJP under the provisions of Article 15 of the UCMJ on two occasions:  for wrongful use of cocaine and for larceny.

7.  On 26 July 1989, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he elected to submit statements in his behalf, and requested to receive legal consult and representation by legal counsel.  The applicant also acknowledged he understood that if he were issued a general, under honorable conditions discharge, he could expect to encounter substantial prejudice in civilian life.

8.  On 2 August 1989, the separation authority approved the unit commander's request, directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 14, and directed that he be issued a General Discharge Certificate.

9.  On 30 August 1989, the applicant was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time shows that he received a "General, (Under Honorable Conditions)" characterization of service.  Block 25 (Separation Authority) shows that he was discharged under the provisions of paragraph 
14-12b(2), section III, of Army Regulation 635-200.  Block 26 of this form shows he was assigned a Separation Program Designator (SPD) code of "JKK."  Block 28 (Narrative Reason for Separation) shows "Misconduct - Abuse of Illegal Drugs."

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

11.  Army Regulation 635-200 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.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may 
also be processed after a first drug offense and must be processed for separation after a second offense.  The separation authority could direct the issuance of either an honorable or a general, under honorable conditions discharge based upon the separating Soldiers 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.  The applicant's contention that his record should be corrected by upgrading his general, under honorable conditions discharge to an honorable discharge was carefully considered and determined to be without merit.

2.  The applicant's records show he was nearly 22 years of age at the time of his enlistment and there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation. 

3.  The record shows the applicant had multiple disciplinary infractions.  In spite of his indiscipline, the applicant's chain of command was willing to allow the applicant to remain on active duty and continue to serve.  Evidence shows the applicant was not responsive to the rehabilitative efforts of his command.

4.  The evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable discharge.



6.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for benefits that are available to Soldiers who served honorably.  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 any evidence that would satisfy this requirement.

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)                                         AR20090008558



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ABCMR Record of Proceedings (cont)                                         AR20090008558



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