IN THE CASE OF:	  

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20100000497 


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 he needs more medical benefits.  He is trying to piece together the rest of his life.  He needs health benefits to be able to take care of himself.  He admits that he wrecked his life.  Now, he wants to live a full and productive life.  He was 24 years old when he joined, now he is 52.

3.  The applicant provides no documentation to support 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 on 4 November 1981.  He completed training as an armor crew member and progressed normally.

3.  He was promoted to pay grade E-5 on 19 March 1984 and was awarded the Good Conduct Medal on 3 December 1984.

4.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) as follow:

* on 24 June 1985 for failing to go at the time prescribed to his appointed place of duty; he was reduced to pay grade E-4
* on 27 August 1985 for aggravated assault on a female; he was reduced to pay grade E-2
* on 25 September 1985 for violating a lawful general regulation by possessing drug paraphernalia that tested positive for marijuana and by possessing marijuana; he was reduced to pay grade E-1

5.  The applicant was notified of the company commander's intention to initiate separation action under the provisions of Army Regulation 635-200, chapter 14, for misconduct and that the least favorable discharge he could receive would be general under honorable conditions.

6.  The applicant consulted with counsel and was advised of his rights.  He waived consideration of his case by a board of officers, personal appearance before such a board, the submission of statements in his own behalf, and representation by counsel.  He also acknowledged that he could expect to encounter substantial prejudice in civilian life if he received less than an honorable discharge.

7.  The company commander recommended separation and the battalion commander recommended approval.  The separation authority waived any further counseling or rehabilitation requirements and directed that the applicant be separated with a general discharge.

8.  On 12 November 1985 he was so discharged.  He had 4 years and 9 days of creditable service and no lost time.

9.  Although there is correspondence indicating that he made an inquiry about the schedule for personal appearance hearings, there is no indication the Army Discharge Review Board ever considered upgrading his discharge.



10.  Army Regulation 635-200 (Enlisted Separations) provides in:

   a.  chapter 14 for separating enlisted members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

   b	chapter 14, at that time, drug abuse could be considered a pattern of misconduct or treated as commission of a serious offense.   Currently, 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.

   c.  paragraph 3-7a that an honorable discharge as 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 states he needs more medical benefits.  He is trying to piece together the rest of his life.  He needs health benefits to be able to take care of himself.  He admits that he wrecked his life.  Now, he wants to live a full and productive life.  He was 24 years old when he joined, now he is 52.

2.  There is no available evidence and the applicant did not provide any evidence to substantiate his request to upgrade his discharge.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  In about 4 months the applicant received three NJPs for numerous offenses. Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service less than fully satisfactory. Therefore, he is not entitled to an honorable discharge.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board 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.

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)                                         AR20100000497





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)