BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100009329 


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 discharge be upgraded to fully honorable.

2.  The applicant states he was told he could have his general discharge changed to a fully honorable discharge after so many years.  He works with veterans on a daily basis and requests his discharge be upgraded in order to receive benefits.

3.  The applicant did not provide any additional documentary evidence in support of 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's record shows he enlisted in the Regular Army on 23 May 1980.  He was trained in and served in military occupational specialty (MOS) 94B (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was sergeant (SGT)/E-5.

3.  His record shows he earned the Army Good Conduct Medal, Army Commendation Medal with Oak Leaf Cluster, Army Achievement Medal with Oak Leaf Cluster, Overseas Service Ribbon, and Army Service Ribbon during his tenure on active duty.

4.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions:

   a.  for possession of and use of one ounce, more or less, of marijuana on 
6 August 1980; and
   
b.  wrongfully using marijuana between on or about 15 April and 30 April 1986.

5.  On 30 May 1986, the applicant was released from the Primary Leadership Development Course for testing positive for marijuana.

6.  On 12 June 1986, the applicant's unit commander notified the applicant he was initiating action to separate him under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of commission of a serious offense (drug abuse).  He cited the applicant's positive urinalysis for marijuana, dated 30 April 1986, as the basis for taking the proposed separation action.

7.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, of the rights available to him, and of the effect of a waiver of those rights.  After this counseling, the applicant voluntarily waived consideration of his case by an administrative separation board and elected to submit a statement in his own behalf and to be represented by military counsel.  His statement details his career and accomplishments.  He stated that his service was rewarding and would fight and die for our Country anytime in a National Crisis.

8.  The separation authority approved the applicant's separation under the provisions of paragraph 14-12c, Army Regulation 635-200, and directed that he be issued an Honorable Discharge Certificate.


9.  On 29 July 1986, while awaiting separation orders, the applicant went absent without leave (AWOL) and the separation authority amended the characterization to general under honorable conditions.  Accordingly, the applicant was discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed a total of 6 years, 2 months, and 8 days of active service.   

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

11.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

12.  Army Regulation 635-200 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 that he was told his discharge status would be changed to honorable after a period of time and then he could receive Veterans benefits.

2.  Evidence shows the applicant was equitably and properly discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.
3.  The applicant's pattern of misconduct included two incidents of possessing and using marijuana and one period of AWOL; therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  The ABCMR does not upgrade properly-issued discharges solely for establishing eligibility for other programs or benefits.

5.  Based on all of the foregoing, there is insufficient basis to upgrade the applicant's 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)                                         AR20100009329



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)