IN THE CASE OF:	 

		BOARD DATE:	 12 January 2010 

		DOCKET NUMBER:  AR20090011813


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 an honorable discharge.

2.  The applicant states he enlisted 2 days after his 18th birthday and was too young to be a Soldier.  Also, he was assigned to Germany following his initial entry training and while there he developed a drug habit.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  At age 18, the applicant enlisted in the Regular Army for 3 years on 24 April 1980.  He was trained in military occupational specialty 13B (Cannon Crewman) and was assigned to Germany following training.

3.  The applicant served in Germany from on or about 16 August 1980 to on or about 16 March 1982.  He served with Battery C then Battery B, 2nd Battalion, 5th Field Artillery.  While in Germany, he received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for:

	a.  wrongfully having in his possession some marijuana residue on 13 and 16 March 1981 and violating a lawful general regulation on 16 March 1981 by operating a privately-owned motor vehicle without a U.S. Army Europe driver's license for which he received a reduction from private first class (PFC/E-3) to private (PVT/E-1), forfeiture of $250.00 pay per month for 2 months, and 15 days of extra duty; and

	b.  willfully disobeying a lawful order to go to bed on 25 December 1981, for which he received a reduction from private (PVT/E-2) to private (PVT/E-1) and 7 days of restriction and extra duty.

4.  The applicant, then 20 years of age, was reassigned from Germany to Fort Stewart, GA, arriving at Fort Stewart on or about 22 April 1982.  He was assigned to Battery C then Battery B, 1st Battalion, 13th Field Artillery.  On 19 July 1982, he received nonjudicial punishment for being absent without leave from his unit from on or about 14 July 1982 to on or about 15 July 1982.  As punishment he was made to forfeit $100.00 pay per month for 1 month and to 5 days of correctional custody.

5.  On an unknown date, the applicant was apprehended for driving under the influence of alcohol.  His unit commander imposed a bar to reenlistment on 24 August 1982.  On 25 August 1982, he was convicted in a magistrate's court of driving under the influence of alcohol and fined $250.00.

6.  On 14 September 1982, the applicant was notified by his unit commander that he was being processed for separation under the provisions of paragraph 5-31, Army Regulation 635-200 (Personnel Separations), because of his demonstrated inability to adapt to military life, poor attitude, lack of self discipline, and alcohol-related offenses.  On the same date, the applicant acknowledged notification and elected not to make a statement.

7.  On or about 22 September 1982, the approving authority approved the applicant's separation under the provisions of paragraph 5-31, Army Regulation 635-200.  The approving authority directed the applicant receive a general discharge.  On 27 September 1982, the applicant was discharged.

8.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part, 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.

9.  Paragraph 5-31 of Army Regulation 635-200, then in effect, provided for the Expeditious Discharge Program.  This program provided for the discharge of individuals who had completed at least 6 months but less than 36 months of active duty and who demonstrated by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential that they could not or would not meet acceptable standards.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel.

DISCUSSION AND CONCLUSIONS:

1.  The applicant would like an honorable discharge.  He states he was too young to serve in the Army and he had a drug habit.

2.  The applicant was 18 years old when he enlisted.  There is no evidence he was any less mature than other 18-year olds who successfully completed their terms of enlistment.

3.  There is no evidence in the record to show the applicant had a drug problem.  However, had he been addicted to illegal drugs, the Army had programs in place to assist him in overcoming his drug habit.  There is no evidence he sought any form of drug treatment.

4.  The applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of his discharge is commensurate with the applicant's overall record of military service.



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)                                         AR20090011813



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ABCMR Record of Proceedings (cont)                                         AR20090011813



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