IN THE CASE OF:	  

		BOARD DATE:	  03 June 2010

		DOCKET NUMBER:  AR20090020900 


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 discharge to an honorable discharge.

2.  The applicant states that he was young at the time of the incident that led to his separation.  He states he accepts full responsibility for his misconduct and the subsequent punishment that followed.  He now considers the general discharge extreme.  He concludes by stating he has never been in trouble with the law before or since the incident.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 30 July 1991 at the age of 20 years, 9 months, and 4 days.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman).

3.  He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 30 November 1992 for wrongfully using LSD (lysergic acid diethylamide) between 1 August 1992 and 12 November 1992.  At the time of the incident, he was between 21 years, 9 months, and
5 days and 22 years and 16 days of age.

4.  On 23 November 1992, the applicant was found medically qualified for separation.  The applicant's DA Form 3822-R (Report of Mental Status Evaluation) shows he had the mental capacity to understand and participate in board proceedings, that he was mentally responsible, and that he met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

5.  On 10 March 1993, the applicant's commander notified him that action was being initiated to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-12c, due to commission of a serious offense - abuse of illegal drugs between 1 August 1992 and 12 November 1992.

6.  The commander advised the applicant of his right to be represented by counsel, to request a hearing before an administrative separation board or to submit written statements in his own behalf, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge.  The commander also advised the applicant that the proposed separation action could result in an under other than honorable conditions discharge.

7.  Accordingly, the applicant consulted with counsel on 10 March 1993.  He waived consideration of his case by an administrative separation board and a personal appearance before said board.  He acknowledged that his willful failure to appear before this separation board without good cause would constitute a waiver of his rights.  He elected representation by counsel but not to submit personal statements.  The applicant indicated that he understood that he could encounter extreme prejudice in civilian life with an under other than honorable conditions discharge.  He further indicated he understood that his separation under other than honorable conditions could deprive him of many or all Army


benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a Veteran under both Federal and State laws.

8.  The applicant's commander then recommended him for discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, due to misconduct - abuse of illegal drugs that was punishable under the UCMJ, which rendered him unsuitable for continued military service.  The commander recommended a general discharge.

9.  On 17 March 1993, the approval authority waived the rehabilitative requirements and directed the applicant be discharged from the service with a General Discharge Certificate.

10.  On 2 April 1993, the applicant was discharged accordingly.  He completed 1 year, 8 months, and 3 days of creditable active service.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  References:

	a  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.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.  Based on the evidence of record, the applicant's company commander initiated separation action against him for wrongful use of a controlled substance, an act punishable under the UCMJ.  

2.  The applicant contends that his discharge should be upgraded because he was young at the time of separation.  This is not sufficiently mitigating since he was between 21 years, 9 months, and 5 days and 22 years and 16 days of age at the time of the offense that led to his discharge.  

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, 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)                                         AR20090020900



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ABCMR Record of Proceedings (cont)                                         AR20090020900



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