BOARD DATE:	  3 June 2010

		DOCKET NUMBER:  AR20090019803 


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 general discharge be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that he wants his discharge upgraded so he can receive education benefits. 

3.  The applicant provides no additional documentary evidence in support of this 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 military records show that he enlisted in the Regular Army on 21 August 1979.  He reenlisted for 3 years on 25 February 1982.  He was awarded the military occupational specialty of petroleum supply specialist.  The highest rank/grade he held was sergeant/E-5.

3.  On 15 January 1985, the applicant's commander advised him that he was recommending him for separation under the provisions of paragraph 14-12c of Army Regulation 635-200 (Personnel Separations – Enlisted Separations) due to commission of a serious offense.  The applicant acknowledged receipt of the notification.

4.  On 17 January 1985, the applicant acknowledged he had been advised by counsel of the basis for the contemplated separation action and its effects, of the rights available to him, and of the effect of any action taken by him in waiving his rights.  He requested consideration of his case by a board of officers.  However, he also acknowledged that he understood if he was not being considered for an under other than honorable conditions discharge he had no right to a board of officers.  He submitted a statement in his own behalf.  In his statement he chronicled what he described to be an excellent duty performance history. 

5.  On 1 February 1985, the applicant was recommended for separation due to abuse of illegal drugs (first-time drug offenders in the grades of E-5 to E-9 will be processed for separation upon discovery of a drug offense).  On 17 December 1984, the applicant's urinalysis had proved to be positive.

6.  On 7 February 1985, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c and directed that he be issued a General Discharge Certificate.

7.  The applicant was discharged on 13 February 1985 under the provisions of Army Regulation 635-200, paragraph 14-12c with a general discharge.  He completed 5 years, 5 months, and 23 days of active military service.

8.  On 16 January 1998, the Army Discharge Review Board denied the applicant's request to upgrade his general discharge to an honorable discharge.  However, during the review the ADRB determined his narrative reason for separation should be changed from misconduct - drug abuse to show misconduct.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) was administratively reissued to show this change. 



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, and abuse of illegal drugs.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he had a positive urinalysis as an E-5.  Such conduct would certainly warrant an administrative discharge.

2.  Based on the applicant's record of misconduct, 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 an honorable discharge.

3.  The available evidence confirms the applicant's rights were protected throughout the discharge process.  

4.  The applicant provided not mitigating factors for his misconduct; therefore, he has not established a basis to justify upgrading his discharge.

5.  Properly issued discharges are not upgraded 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 request.








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)                                         AR20090019803



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ABCMR Record of Proceedings (cont)                                         AR20090019803



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