IN THE CASE OF:	  

		BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20100008952 


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 an upgrade of his general under honorable conditions discharge to fully honorable.

2.  The applicant makes no statement in support of his request.

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's records show he enlisted in the Regular Army for a period of 4 years on 29 March 1989.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 31D (Mobile Subscriber Equipment Transmission System Operator/Maintainer).  The highest rank/grade he attained during his military service was private first class/E-3.

3.  The applicant's records show he served in Germany from 11 August 1990 to 12 May 1992.  He was awarded the Army Service Ribbon, the National Defense Service Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  On 15 January 1992, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana on or about 16 October 1991.

5.  On 7 April 1992, he again accepted NJP for wrongfully using marijuana between on or about 13 December 1991 and 13 January 1992.

6.  On 9 April 1992, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct – commission of a serious offense (abuse of illegal drugs).  Specifically, the immediate commander cited the applicant's two prior instances of drug abuse.  The immediate commander recommended a general discharge.

7.  He acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel who advised him the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures and rights that were available to him.  He waived consideration of his case by an administrative separation board, waived a personal appearance before an administrative separation board, and elected to submit a statement on his own behalf within 7 days, but he did not do so (or if he did, his record is void of any statements submitted by him).

8.  He further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

9.  On 9 February 1992, his immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct – commission of a serious offense – with the issuance of a general under honorable conditions discharge.

10.  On 22 April 1992, his intermediate commander recommended approval of the discharge action.  The intermediate commander remarked that the applicant had no potential for further military service and rehabilitative efforts would not have produced a quality Soldier or were in the best interests of the Army.

11.  On 30 April 1992, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct – commission of a serious offense – and directed the applicant be furnished a general under honorable conditions discharge.  Accordingly, the applicant was discharged on 13 May 1992.

12.  The DD Form 214 he was issued confirms he was discharged on 13 May 1992 under the provisions of chapter 14 of Army Regulation 635-200 with a general under honorable conditions character of service.  This form further confirms he completed a total of 3 years, 1 month, and 15 days of creditable military service.

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

14.  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 the regulation.

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 contends his discharge should be upgraded.

2.  The evidence of record shows he committed a serious offense in that he wrongfully used illegal drugs on two separate occasions.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was accordingly discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his misconduct.

3.  The evidence of record shows his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, he is not entitled to the 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)                                         AR20100008952



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)