IN THE CASE OF:	  

		BOARD DATE:	    19 May 2010

		DOCKET NUMBER:  AR20090020394 


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 discharge from general, under honorable conditions to honorable.

2.  The applicant states when the offense [for which he was discharged] happened he was very young and trying to fit in.

3.  The applicant provides no documentation 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 enlisted in the Regular Army on 5 February 1991.  He was trained in and awarded military occupational specialty 31M (Multichannel Communication System Operator).  
3.  On 6 May 1993, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.

4.  On 7 July 1993, the applicant again accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.

5.  On 22 July 1993, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for misconduct – abuse of illegal drugs.  His commander also informed him of his intent to recommend discharge under honorable conditions.

6.  The applicant consulted with legal counsel, and was advised of the basis for contemplated separation for misconduct and its effect, the rights available to him, the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions and that, as the result of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He waived his right to submit statements on his behalf and requested consulting counsel.

7.  In August 1993, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of commission of a serious offense and directed the applicant’s service be issued a General Discharge Certificate.  On 19 August 1993, the applicant was discharged accordingly.  He completed 2 years, 6 months, and 15 days of creditable active military service.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his date of birth as 21 October 1971.  The record is void of documentation indicating the applicant was immature relative to his peers.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his characterization of discharge from general under honorable conditions to honorable was carefully considered and not supported by the evidence in this case.

2.  Although the applicant states his discharge resulted from being very young and trying to fit in, records show he was 20 years old at the time he accepted NJP for marijuana use.  There is no evidence of record nor has the applicant provided evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant’s separation for misconduct was proper and equitable and in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  Based on his record of indiscipline, which includes twice accepting NJP for using marijuana, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant 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)                                         AR20090020394





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ABCMR Record of Proceedings (cont)                                         AR20090020394



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