IN THE CASE OF:	

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090013919 


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 general, under honorable conditions discharge to a fully honorable discharge.

2.  The applicant states that having anything other than an honorable discharge reflects negatively on possible employment opportunities, even though it has been over 20 years since his discharge.

3.  The applicant did not provide any additional documentary 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.  The applicant's record shows he enlisted in the Regular Army (RA) for a period of 3 years on 13 May 1986.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Infantryman).  He also executed a 14-week extension on 16 May 1986.  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's record further shows he was awarded the Army Service Ribbon and the Expert Marksmanship Qualification Badge with Rifle, Grenade, and Dragon Gunner Bars.

4.  On 17 February 1987, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana at some unknown location between 1 November 1986 and 1 December 1986.  His punishment consisted of a reduction to private (PV1)/E-1, a forfeiture of $329.00 pay per month for 2 months, and 45 days of restriction and extra duty.

5.  On 19 April 1988, the applicant participated in a unit urinalysis and his urine sample tested positive for marijuana.

6.  On 26 May 1988, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana at some unknown location between 19 March 1988 and 19 April 1988.  His punishment consisted of a reduction to PV1/E-1, a forfeiture of $335.00 pay per month for 2 months, and 45 days of restriction and extra duty.

7.  On 14 June 1988, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct - commission of a serious offense - abuse of illegal drugs.  The immediate commander also notified him that he intended to recommend his service be characterized as general, under honorable conditions.

8.  On 14 June 1988, the applicant acknowledged receipt of the commander's intent to separate him and on 15 June 1988 he consulted with legal counsel, and he was advised of the basis for the contemplated separation 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 waived consideration of his case by a separation board and a personal appearance before a separation board, but elected to 

submit a statement in his own behalf.  In his statement, he indicated that he wanted to stay in the Army and continue to grow as a Soldier.

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

10.  On 11 July 1988, the applicant's immediate commander initiated separation action against him in accordance with paragraph 14-12c of Army Regulation
635-200 for misconduct-commission of a serious offense – abuse of illegal drugs. The immediate commander remarked that the applicant was a repeat drug use offender.  The battalion commander had been very specific after the applicant's first offense on what would occur if he was caught using drugs again.  The applicant willingly used drugs a second time, in effect, showing that he had no desire to rehabilitate himself.

11.  On 12 July 1988, the intermediate commander reviewed the recommended separation action and recommended approval of the applicant's discharge with a general, under honorable conditions discharge.

12.  In July 1988, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - commission of a serious offense - abuse of illegal drugs and directed his service be characterized as general, under honorable conditions.  On 10 August 1988, the applicant was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - commission of a serious offense - abuse of illegal drugs with a character of service of general, under honorable conditions.  This form further confirms that the applicant completed 2 years, 2 months, and 28 days of creditable active military service.

13.  On 5 June 1992, the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge.

14.  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 include 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 regulation.

15.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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 contends that his general, under honorable conditions discharge should be upgraded to an honorable discharge.

2.  The applicant's record of service shows that he accepted NJP under the provisions of Article 15 of the UCMJ for abuse of illegal drugs.  His battalion commander had been very specific after his first offense on what would occur if he was caught using drugs again.  The applicant willingly used drugs a second time, showing that he had no desire to rehabilitate himself.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record shows the applicant’s discharge was appropriate based on his unlawful abuse of illegal drugs.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade of his discharge.

4.  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, there is no basis for granting the applicant's requested 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)                                         AR20090013919



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ABCMR Record of Proceedings (cont)                                         AR20090013919



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