IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100008457 


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 his general under honorable conditions discharge be upgraded to fully honorable.  

2.  The applicant states the following:

* he was very young when he was discharged for substance abuse and it is a stain on his record
* he served two terms and was honorably discharged the first time
* he thinks his discharge should be upgraded after all this time without any other issues

3.  The applicant provides no additional documents in support of his 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 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 19 November 1981 at 19 years of age.  He was discharged on 19 May 1985 for immediate reenlistment.  

3.  The applicant reenlisted on 20 May 1985 for a period of 4 years.  

4.  On 31 October 1986 and 14 December 1988, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using cocaine and wrongfully using marijuana.  

5.  On 25 March 1989, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for abuse of illegal drugs.  He was advised of his rights.

6.  On 31 March 1989, the applicant submitted a request for a conditional waiver of an administrative board.  He voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service of no less than a general under honorable conditions.  He submitted statements in his own behalf; however, his statements are not available.

7.  On 26 April 1989, the separation authority approved the conditional waiver and directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - abuse of illegal drugs with a general discharge under honorable conditions.  

8.  On 10 May 1989, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  At the time of his discharge, he was 27 years old.  He had completed 3 years, 11 months, and 20 days of creditable active service during the period under review and 7 years, 5 months, and 22 days total active military service.

9.  The applicant's service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

11.  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 contends he was very young when he was discharged for substance abuse.  However, age is not sufficiently mitigating to warrant relief in this case.  

2.  The applicant completed prior honorable service.  However, the applicant’s service record shows he received two Article 15s for wrongful use of cocaine and marijuana during the period under review.  Therefore, his prior honorable service is not sufficient to mitigate his misconduct.

3.  Discharges are not upgraded based on the passage of time.  Each case is considered based on its own merits.  Considering the seriousness of the applicant's offenses, it appears his service was appropriately characterized.

4.  After review of the evidence of this case, it is determined that the applicant has not presented sufficient evidence which warrants changing his general discharge under honorable conditions discharge to a fully 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)                                         AR20100008457



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ABCMR Record of Proceedings (cont)                                         AR20100008457



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