IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090011690 


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 discharge be upgraded to honorable.

2.  The applicant states, in effect, that he is a responsible adult and was a responsible Soldier.  He contends that he has never gotten into any trouble in his civilian life and that his only trouble was in the military.  He knows what he did was wrong and that was his first time and last time using drugs.  He indicates that he has held a steady job and started a family, that he served his punishment for his actions in the military, and that he learned from his mistakes.  He points out that he was discharged from the military on his original expiration term of service date, that he made E-4 and was working on his E-5, and that he is trying to attend school.  He would like his discharge upgraded so he can use the Montgomery G.I. Bill to continue his education.    

3.  The applicant provides no 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 enlisted in the Regular Army on 8 July 1999 and trained as a heavy wheel vehicle mechanic.  His highest rank attained was specialist. 

3.  On 6 March 2002, nonjudicial punishment was imposed against the applicant for using marijuana on or about 1 April 2000 and on or about 24 December 2000.  His punishment consisted of a reduction to E-1, a forfeiture of pay (suspended), and extra duty.

4.  On 29 May 2002, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense).  The unit commander cited that the applicant wrongfully used marijuana on two separate occasions.

5.  The applicant consulted with counsel, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued, and elected not to submit a statement on his own behalf.

6.  On 5 June 2002, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

7.  Accordingly, the applicant was discharged on 15 June 2002 with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense).  He had served a total of 2 years, 11 months, and 7 days of creditable active service.

8.  On 12 March 2004, the Army Discharge Review Board denied the applicant's request for an honorable discharge and narrative reason change.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense (military or civilian offense), and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  A discharge is not upgraded for the purpose of obtaining educational benefits.

2.  The applicant’s record of service included one nonjudicial punishment for using marijuana on two separate occasions.   As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

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

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)                                         AR20090011690





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ABCMR Record of Proceedings (cont)                                         AR20090011690



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