IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100007504 


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.  He states that he hopes the Army Board for Correction of Military Records (ABCMR) will consider upgrading his discharge because he has served his time with a general discharge.

3.  The applicant provides no documentary evidence in support of this application.

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 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 record shows he enlisted in the Louisiana Army National Guard (LAARNG) on 18 September 1987.  Upon completion of initial entry training, he was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  At a later date, he reclassified to MOS 51B (Carpentry and Masonry Specialist).  The highest rank/grade he attained while serving the LAARNG was private (PV2)/E-2.

3.  His record shows that as a result of testing positive for marijuana on a unit urinalysis test, he was referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for screening and counseling.  Evidence also shows he missed at least one appointment and he was ultimately recommended for separation based upon the counselor's opinion that he was a poor candidate for rehabilitation.

4.  His record contains copies of two Letters of Instructions for Unexcused Absences that were sent to him by his unit commander as a result of him being absent without leave from scheduled unit events.  The commander advised him that he could be subjected to disciplinary action if this behavior continued.

5.  On 27 May 1992, his unit commander notified the applicant that he was initiating action which could result in his separation from the LAARNG and as a Reserve of the Army under the provisions of Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program) and Army Regulation 135-178 (Separation of Enlisted Personnel) for being identified as a substance abuser and subsequently declining to accept rehabilitation training and treatment.  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, to be represented by counsel at any hearing, to waive these rights in writing, and to withdraw his waiver of any of these rights at any time prior to the date the discharge authority directed or approved his separation.

6.  On 28 May 1992, he acknowledged receipt of the unit commander's notification.  In Item 9 of his acknowledgement letter, he indicated his understanding that there is no automatic upgrading or review by any Government agency of any characterization of service that is less than honorable.

7.  The separation authority approved the unit commander's request, directed the applicant's discharge from the ARNG and as a Reserve of the Army under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26q, by reason of acts or patterns of misconduct.  

The separation authority directed the issuance of a General Discharge Certificate with an under honorable conditions characterization of service.

8.  On 1 October 1992, he was discharged accordingly.  The National Guard Bureau (NGB) NGB Form 22 (Report of Separation and Record of Service) issued to him at the time shows:

* he was discharged due to acts or patterns of misconduct under the provisions of National Guard Regulation 600-200, paragraph 8-26q
* he received a "General, (Under Honorable Conditions)" characterization of service

9.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

10.  National Guard Regulation 600-200, chapter 8, and Army Regulation 135-178, chapter 7, provide for the separation of enlisted personnel of the Army Reserve and the ARNG for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, unsatisfactory participation, 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 and an unfit medical condition is not the direct or substantial contributing cause of his or her misconduct.  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.  

11.  National Guard Regulation 600-200, paragraph 6-8 provides, in pertinent part, 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 contention that his record should be corrected by upgrading his general discharge to an honorable discharge was carefully considered and determined to be without merit.

2.  Evidence shows he was identified as a substance abuser and in spite of his indiscipline, his chain of command was willing to allow him to remain and continue to serve.  Evidence shows he was not responsive to the rehabilitative efforts of his command.

3.  Evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his general discharge 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)                                         AR20100007504



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)