IN THE CASE OF:	  

		BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100010495 


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 honorable.

2.  The applicant states:

* His discharge is hindering his employment opportunities
* He was given a general discharge in 1986 for marijuana use
* At that time he was 20 years old and he did not understand the repercussions of his actions and how it would affect him later in life
* He is a citizen in good standing with the law
* He is a church-going man who gives back to the community by providing rides for church members

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 was born on 24 November 1963.  He enlisted in the Regular Army on 19 April 1983 for a period of 3 years.  He trained as a heavy anti-armor weapons crewman.  

3.  On 26 March 1985, nonjudicial punishment (NJP) was imposed against the applicant for using marijuana.  His punishment consisted of a reduction to E-1, a forfeiture of pay, restriction, and extra duty. 

4.  On 21 January 1986, NJP was imposed against the applicant for using marijuana.  His punishment consisted of a reduction to E-1, a forfeiture of pay, restriction, and extra duty. 

5.  On 21 February 1986, the applicant's unit commander initiated separation proceedings under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense).  He cited the applicant was a second time offender of illegal drugs.

6.  On 26 February 1986, the applicant consulted with counsel, waived his rights, acknowledged that he might encounter substantial prejudice in civilian life if a discharge under other than honorable conditions were issued, and elected to submit a statement on his own behalf.  However, on 12 March 1986, records show the applicant failed to submit any statements and his packet was processed.

7.  On 14 April 1986, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.  

8.  Accordingly, the applicant was discharged on 18 April 1986 with an under honorable conditions discharge (a general discharge) under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense).  He had served a total of 3 years of creditable active service.

9.  There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations. 

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.

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.  Age is not a sufficiently mitigating factor.  The applicant was 19 years old when he enlisted and he successfully completed his training.    

2.  The Board does not upgrade a discharge for the purpose of enhancing employment opportunities.

3.  Good post service conduct alone is normally not a basis for upgrading a discharge.

4.  The applicant’s record of service included two nonjudicial punishments for marijuana use.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

5.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

6.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.





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)                                         AR20100010495



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ABCMR Record of Proceedings (cont)                                         AR20100010495



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