IN THE CASE OF:	 

		BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090020191 


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 upgrade of his general under honorable conditions discharge to an honorable discharge.

2.  The applicant states he believed his discharge would be upgraded to an honorable discharge after 6 months.  However, he learned that it was not automatic and that he had the option to request an upgrade of his discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter of recommendation from his former unit commander and first sergeant, both dated 15 October 1984.

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 25 January 1978.  He reenlisted on 22 September 1981 for a period of 3 years.  He was awarded military occupational specialty 51K (plumber).  The highest rank/grade he held was specialist four (SP4)/E-4.

3.  Records show that on 5 October 1984 the unit commander notified the applicant of initiation of separation action under provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 for misconduct.  The document stated his discharge was recommended due to two positive urinalysis tests for tetrahydrocannabinol (THC).  These tests were command directed on 22 November 1983 and 2 August 1984.  It further stated he was not qualified for further military service because of his unsatisfactory performance.  The applicant acknowledged receipt of the notification.

4.  On 17 October 1984, the applicant acknowledged he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for misconduct under the provisions of Army Regulation 635-200, chapter 14, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  He acknowledged that he may expect to encounter substantial prejudice in civilian life if a general under honorable conditions discharge was issued to him.

5.  The applicant was recommended for separation.  On 23 October 1984, the appropriate authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14.  He directed the issuance of a General Discharge Certificate.

6.  His DD Form 214 shows he was discharged on 26 October 1984 with a characterization of service of general under honorable conditions under the provisions of Army Regulation 635-200, chapter 14.  His DD Form 214 shows he completed 6 years, 9 months, and 3 days of total active service.

7.  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.

8.  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.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

9.  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 that on two occasions he had a positive urinalysis for THC.  Such conduct would certainly warrant an administrative separation from the Army.

2.  Documents contained in the applicant's records confirm that his rights were protected throughout the discharge process.

3.  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.

4.  The applicant’s character of service is based on his performance and conduct during the period in which he served.  Evidence indicates the letters of recommendation he provided with his application were previously considered as a part of his overall record when he was issued a general under honorable conditions discharge instead of a discharge under other than honorable conditions which is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 14.  He has not provided any evidence to mitigate the actions he took during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.

5.  The Army does not have, and has never had, any policy to automatically upgrade a discharge based on the passage of time.

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)                                         AR20090020191



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ABCMR Record of Proceedings (cont)                                         AR20090020191



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