IN THE CASE OF:	  

		BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090019461 


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 other than honorable conditions discharge be upgraded to an honorable discharge. 

2.  The applicant states he has learned his lesson.  He has never been convicted of a crime, he has a family, a full-time job, and he is active in his church.  He also states he needs the upgrade so that he may be able to use the Department of Veterans Affairs (VA) medical clinic.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and five letters of reference.

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 military records show he enlisted in the Regular Army on 17 February 1981.  He was awarded the military occupational specialty of food service specialist.  The highest rank/grade he held was specialist four/E-4.

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on four occasions during the period 2 February and 28 August 1984 for:

* behaving with disrespect towards a superior commissioned officer
* failing to be at his appointed place of duty
* wrongful possession of marijuana
* wrongful use of marijuana

4.  On 4 September 1984, the applicant was advised he was being recommended for administrative separation under provisions of paragraph 
14-12c of Army Regulation 635-200.  The specific basis for the recommendation for his separation was that he received his second NJP for drug abuse.  The applicant acknowledged receipt of the notification. 

5.  On 2 November 1984, the applicant acknowledged he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for commission of a serious offense under the provisions of Chapter 14 of Army Regulation 635-200 and its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He did not submit a statement in his own behalf.  He waived his rights with the exception of consulting counsel.

6.  The applicant was recommended for separation.  On 29 January 1985, the appropriate authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c.  It was directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.

7.  His DD Form 214 shows he was discharged on 7 February 1985 under the provisions of Army Regulation 635-200, paragraph 14-12c with a characterization of service of under other than honorable conditions.  He completed 3 years, 
11 months, and 20 days of active military service.  He also had 1 day of lost time.

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

10.  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.

11.  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 records show he accepted nonjudicial punishment (NJP) on four occasions for behaving with disrespect towards a superior commissioned officer, failing to go to his appointed place of duty at the prescribed time, wrongful possession of marijuana, and wrongful use of marijuana.  Such conduct would certainly warrant an administrative discharge.

2.  The available evidence shows his rights were protected throughout the discharge process.

3.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  The applicant's good post-service conduct was carefully considered.  However, the applicant’s character of service is based on his performance and conduct during the period in which he served.  He has not provided any evidence to mitigate the misconduct that he committed during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.

5.  The Board does not upgrade properly issued discharges solely for the purpose of establishing eligibility for other programs or benefits.
6.  In view of the foregoing, 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)                                         AR20090019461



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ABCMR Record of Proceedings (cont)                                         AR20090019461



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