IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090012314 


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 an upgrade of his under honorable conditions (general) discharge to fully honorable.

2.  The applicant states that after Operation Desert Storm, his unit was inactivated and then reactivated at Fort Benning, GA, and the Army was looking to get Soldiers out of the Army for any reason.  He and other Desert Storm veterans were drinking at a party at a friend's house when a female friend handed him what he thought was a cigarette.  The next day, he participated in a unit urinalysis and tested positive for marijuana.  He adds that at the time the Army changed the regulation and decided not to give Soldiers in the rank/grade of specialist (SPC)/E-4 and below a second chance and that he feels he was not given a second chance to redeem himself.  He also adds that during outprocessing he was told that if he was good in the civilian sector for so many years he might get a chance to upgrade his discharge.  He further adds that he has been in good standing in the community as he has married and had children, worked in an aerospace plant with jet engines for 6 years, relocated to another state, and became an industrial line mechanic.  He concludes that he has done pretty good and would like his discharge upgraded to match the medals he earned and the service he performed.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 8 February 1993, 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.  The applicant's records show he enlisted in the Regular Army for a period of 4 years on 23 October 1985.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63S (Heavy Vehicle Mechanic).  He also executed a 4-year reenlistment on 28 February 1989 and attained the rank/grade of SPC/E-4.

3.  The applicant's records show he served in Germany from 29 June 1989 to 8 October 1991.  He also served in Southwest Asia in support of Operations Desert Shield/Desert Storm from 5 December 1990 to 2 May 1991.

4.  The applicant's records further show he was awarded the Army Achievement Medal, the Army Good Conduct Medal, the National Defense Service Medal, the Southwest Asia Service Medal with three bronze service stars, the Army Service Ribbon, the Overseas Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), the Driver and Mechanic Badge with W-Mechanic Bar, and the Kuwait Liberation Medal (Saudi Arabia).

5.  The applicant's records reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 18 July 1990, for willfully disobeying an order from a superior noncommissioned officer on or about 13 July 1990.  His punishment consisted of a reduction to private first class/E-3, a forfeiture of $225.00 pay, 14 days of restriction, and 14 days of extra duty.  He appealed his punishment on 18 July 1990; however, on 24 July 1990, the next superior authority denied his appeal; and

	b.  on 30 April 1992, for absenting himself from unit formation without authority on or about 16 April 1992.  His punishment consisted of 14 days of extra duty.

6.  On 13 October 1992, the applicant participated in a unit drug test and his urine sample tested positive for marijuana.

7.  On 16 November 1992, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for wrongfully using marijuana between the dates of 14 September 1992 and 13 October 1992.  His punishment consisted of a reduction to private (PVT)/E-1, a forfeiture of $808.00 pay (suspended until 4 January 1993), 45 days of restriction, and 45 days of extra duty.  He appealed his punishment on 16 November 1992; however, on 10 December 1992, the next superior authority denied his appeal.

8.  The applicant's record contains several counseling statements by various members of his chain of command for various infractions to include missing formation, missing movement to the field, failure to report, failure to be at the prescribed time at his appointed place of duty, and physical fitness test failure.

9.  On 9 December 1992, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraphs 14-12(b) and 14-12(c) of Army Regulation 635-200 (Personnel Separations) for misconduct.  Specifically, the immediate commander cited the applicant's wrongful use of marijuana and two instances of failure to report.

10.  On 9 December 1992, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by an administrative separation board and appearance before such board and elected not to submit a statement on his own behalf.

11.  The applicant further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

12.  On 9 December 1992, the applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct.  The immediate commander recommended he receive an under honorable conditions (general) characterization of service.

13.  On 10 December 1992, the applicant submitted a request for conditional waiver.  He indicated that he voluntarily waived consideration of his case by an administration separation board contingent upon receiving a characterization of service no less favorable than honorable.

14.  The applicant's intermediate commander recommended approval of the applicant's discharge and further recommended he receive an under honorable conditions (general) characterization of service.

15.  On 8 January 1993, a board of officers was appointed in accordance with chapter 14 of Army Regulation 635-200 to determine whether the applicant should be discharged for a pattern of misconduct.  

16.  On 21 January 1993, by memorandum, the applicant unconditionally withdrew his conditional waiver.

17.  On 28 January 1993, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed the applicant be furnished an under honorable conditions (general) discharge.  Accordingly, the applicant was discharged on 8 February 1993.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct with an under honorable conditions (general).  This form further confirms he completed a total of 7 years, 3 months, and 16 days of creditable military service.

18.  There is no indication in the applicant's records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

19.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

20.  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.  The applicant contends that his general discharged should be upgraded.

2.  The applicant's awards and decorations, service in Southwest Asia, conduct after discharge, and his post-service employment and/or citizenship are commendable; however, they are not sufficiently mitigating for granting the relief requested.

3.  The evidence of record shows the applicant had a history of disciplinary problems including three instances of nonjudicial punishment, one of which was for wrongfully using marijuana, and a history of counseling by several members of his chain of command for various infractions.  Accordingly, his chain of command initiated separation action against him.  The evidence of record further shows the applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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 evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.


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)                                         AR20090012314



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ABCMR Record of Proceedings (cont)                                         AR20090012314



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