IN THE CASE OF:	  

		BOARD DATE:	    29 April 2010

		DOCKET NUMBER:  AR20090018593 


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 discharge. 

2.  The applicant states he has been a productive citizen since his discharge and has rehabilitated himself through a Department of Veterans Affairs (VA) program.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 12 May 1981; three character reference letters; and a certificate of completion, dated 7 December 2009, 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's records show he enlisted in the Regular Army on 19 February 1980 and held military occupational specialty 63B (Power Generation and Wheel Vehicle Mechanic).  The highest rank/grade he attained during his military service was private first class/E-3.  He was assigned to the 2nd Battalion, 9th Field Artillery, Fort Sill, OK.

3.  On 6 February 1981, during a health and welfare inspection, his chain of command suspected him of possessing marijuana.  He was subsequently arrested by military police officials.  A field test of suspected marijuana met with positive results in the amount of 2.39 grams.

4.  On 10 February 1981, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing marijuana.  His punishment consisted of a reduction to private/E-2, a forfeiture of $100.00 pay, and 14 days of restriction and extra duty.

5.  On 18 February 1981, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to private/E-1 (suspended for 90 days), 7 days of confinement in the correctional custody facility, and a forfeiture of $100.00 pay.  Additionally, on 23 February 1981, the suspended reduction was vacated and ordered executed.

6.  On 17 March 1981, he pled guilty at a special court-martial to one specification of being absent without leave (AWOL) on or about 20 February 1981 through on or about 7 March 1981 and one specification of breaching his restraint while undergoing the punishment of confinement.  The court sentenced him to confinement at hard labor for 30 days.  The convening authority approved his sentence on 19 March 1981.

7.  On 28 April 1981, his immediate commander advised him that he intended to initiate action to discharge him from the Army under the provisions of paragraph 5-31 (Expeditious Discharge Program (EDP)) of Army Regulation 635-200 (Personnel Separations) by reason of lack of self-discipline and inability to conform to military rules.  He recommended a general discharge.

8.  On 28 April 1981, he acknowledged notification of the proposed separation action and consulted with legal counsel.  He was advised of the basis for the contemplated separation action under the provisions of paragraph 5-31, Army Regulation 635-200, the effect on future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him.  He voluntarily consented to this separation action and declined to make a statement in his own behalf.  He further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.

9.  On 28 April 1981, his immediate commander initiated separation action against him under the EDP.  The immediate commander stated that the applicant had continually displayed a lack of self-discipline and an inability to conform to military rules and regulations as evidenced by his two instances of NJP and one court-martial.  He had failed to demonstrate any promotion potential and his discharge was for the betterment of the service.

10.  On 7 May 1981, the separation authority approved the discharge and directed that he receive a General Discharge Certificate.  On 12 May 1981, he was accordingly discharged.  The DD Form 214 he was issued confirms he was discharged under the provisions of paragraph 5-31 of Army Regulation 635-200 with an under honorable conditions (general) character of service.  This form further confirms he completed a total of 1 year, 1 month, and 18 days of creditable active military service and had 39 days of lost time.

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  He submitted the following documents:

	a.  a certificate of completion, dated 7 December 2009, showing completion of the substance abuse outpatient treatment program;

	b.  a statement, dated 19 November 2009, from a director of a human immunodeficiency virus/acquired immunodeficiency syndrome program in Atlanta, GA, wherein he states that the applicant had been in his care.  He is compliant with his health care and had been substance abuse free;

	c.  a statement, dated 17 November 2009, from a VA counselor wherein he states the applicant had completed an intensive outpatient course for substance abuse and another for anger management.  The counselor praised him for making great strides in his recovery; and

	d.  a character reference letter, dated 9 November 2009, from his medical case manager wherein she describes him as a person who displays strong motivation to redirect his life in a more positive, stable, and healthy direction.  She also comments on his positive attitude and ability to stay sober.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

14.  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 discharge should be upgraded.

2.  The evidence of record shows he continually displayed a lack of self-discipline and inability to conform to military rules as evidenced by his two instances of NJP and a court-martial.  Accordingly, his chain of command initiated separation action against him and he voluntarily consented to discharge under the EDP.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  His successful completion of a substance abuse program and the recommendations he received from various professionals are noted.  However, his record of military service was marred by indiscipline or misconduct.

4.  Based on his overall record, his service does not meet the standards of acceptable conduct and performance for Army personnel.  Therefore, he is not entitled to an honorable discharge.

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)                                         AR20090018593



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ABCMR Record of Proceedings (cont)                                         AR20090018593



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