IN THE CASE OF:	  

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090016336 


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 under honorable conditions discharge be upgraded to fully honorable. 

2.  The applicant states that his discharge was supposed to be upgraded after 3 years.  

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 records show he enlisted in the Regular Army for a period of 3 years on 10 August 1983.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 76V (Materiel Accounting and Handling Specialist).  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  The applicant’s records also show was awarded the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Grenade Bar.

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

	a.  on 16 April 1985, for absenting himself from his appointed place of duty on or about 21 March 1985.  His punishment consisted of 7 days of restriction and 7 days of extra duty;

	b.  on 3 July 1985, for wrongfully using marijuana between on or about 4 June 1985 and 13 June 1985.  His punishment consisted of a reduction to private first class/E-3, a forfeiture of $185.00 pay (suspended until 2 October 1985), and 14 days of restriction; and

	c.  on 15 March 1986, for wrongfully using marijuana between on or about 10 January 1986 to about 10 February 1986.  His punishment consisted of a reduction to private/E-1 and 30 days of extra duty.

5.  On 6 May 1986, the applicant’s immediate commander notified the applicant of his intention to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for misconduct-commission of a serious offense. 

6.  On 9 May 1986, the applicant acknowledged receipt of the commander's intent to separate him.  He 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 acknowledged that before completing the acknowledgement memorandum, he was afforded the opportunity to consult with legal counsel for consultation, military counsel, or civilian counsel, but declined the opportunity.  


7.  The applicant further indicated that he understood 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.  He further elected not submit a statement in his own behalf.

8.  On 9 May 1986, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct.  The immediate commander remarked that the applicant was a second time offender of illegal drugs.  

9.  On 9 June 1986, the applicant’s intermediate commander reviewed the separation recommendation and recommended approval.  He remarked that the applicant was a second time drug offender who failed to respond to counseling.

10.  On 11 June 1986, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12(c) by reason of misconduct-commission of a serious offense.  He directed the applicant's service be characterized as under honorable conditions (general).  Accordingly, the applicant was discharged on 25 June 1986.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged in accordance with chapter 14 of Army Regulation 635-200 with a character of service of under honorable conditions.  This form further also confirms he completed 2 years, 10 months, and 16 days of creditable active military service.

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

12.  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.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded because he it was supposed to be upgraded after 3 years was carefully considered.  The Army has never had a policy where a discharge is upgraded due to passage of time. 

2.  The evidence of record shows the applicant committed a serious offense by unlawfully abusing illegal drugs as evidenced by his two instances of wrongfully using marijuana.  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.  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.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge.

3.  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)                                         AR20090016336



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ABCMR Record of Proceedings (cont)                                         AR20090016336



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