IN THE CASE OF:	  

		BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090020410 


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 honorable.

2.  The applicant states:

	a.  he did not demonstrate unsatisfactory performance;

	b.  his commanding officer said the Army could not separate him for smoking marijuana, so they said his performance was unsatisfactory;

	c.  he was a good, patriotic Soldier;

	d.  he was not smart in some choices he made;

	e.  he would have been separated much sooner than 2 years and 9 months if he really was guilty of unsatisfactory performance; and

	f.  upgrade of his discharge would help him secure a good job.

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 9 September 1980.  He was trained in and awarded military occupational specialty 62E (Heavy Construction Equipment Operator).

3.  On 29 March 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) and disobeying a lawful order from a superior noncommissioned officer.

4.  On 28 February 1983, the applicant's chain of command was notified the applicant had tested positive for marijuana use.

5.  On 14 March 1983, the applicant's immediate commander recommended he be barred from reenlistment based on his disregard of good discipline and violation of military directives through the use of a controlled substance.  The applicant acknowledged receipt of a copy of the recommendation and chose not to submit a statement on his own behalf.  The applicant's battalion commander approved the bar to reenlistment.

6.  The record shows the applicant received counseling statements regarding his performance on four occasions during the period 31 August 1982 to 31 May 1983.

7.  The record includes a DA Form 5180-R (Urinalysis Custody and Report Record) showing the applicant provided a urine sample on 17 June 1983 that tested positive for marijuana use.

8.  On 26 July 1983, the applicant's immediate commander requested a waiver of a rehabilitative transfer.  In this request, the commander stated the applicant had been given many counseling statements on his misconduct and improving his job performance and attitude.  The commander also stated the applicant had three positive urinalysis tests and that all attempts to bring him up to an acceptable level of performance had been in vain.
9.  On 10 August 1983, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for being disrespectful toward a superior commissioned officer.

10.  On 25 August 1983, the applicant acknowledged receipt of a letter from his immediate commander notifying him he was being recommended for separation for unsatisfactory performance under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) and that he was being recommended for a general discharge.

11.  The applicant consulted with legal counsel and was advised of the basis for contemplated separation for unsatisfactory performance 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.

12.  On 5 October 1983, the separation authority approved the request for waiver of rehabilitative transfer, approved the applicant's separation, and directed he receive a General Discharge Certificate.  On 11 October 1983, he was discharged accordingly.  The applicant's DD Form 214 shows separation for unsatisfactory performance in item 28 (Narrative Reason for Separation).

13.  There is no indication the applicant petitioned the Army Discharge Review Board within that board's 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander's judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

15.  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 request for upgrade of his general under honorable conditions discharge to honorable was carefully considered and found not to be supported by the evidence in this case.

2.  The applicant's separation for unsatisfactory performance 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.

3.  Based on his record of indiscipline, which includes two NJP's and marijuana use, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service insufficiently meritorious to warrant an honorable discharge.  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)                                         AR20090020410





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ABCMR Record of Proceedings (cont)                                         AR20090020410



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