IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100011002 


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 he requests an upgrade based on his past service records.  

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 11 February 1974 and was honorably released from active duty on 10 February 1977.  On the following day, he was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his Reserve obligation.  

3.  The applicant enlisted in the Regular Army on 10 July 1980 and was discharged on 31 May 1983 for immediate reenlistment.  He reenlisted on 1 June 1983.  

4.  On 21 July 1985, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using marijuana on or about 30 April 1985.  

5.  On 21 August 1985, the company commander notified the applicant of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14 for misconduct-commission of a serious offense (abuse of illegal drugs).  He was advised of his rights.  

6.  The applicant declined consultation with legal counsel, waived consideration of his case by an administrative separation board, and did not submit statements in his own behalf.

7.  The special court-martial convening authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12 for misconduct–commission of a serious offense with issuance of a General Discharge Certificate.

8.  The applicant was discharged on 13 September 1985 under the provisions of Army Regulation 635-200, paragraph 14-12d by reason of misconduct-drug abuse.  At the time of his discharge, he had completed 2 years, 3 months, and 13 days of active military service during the period under review and a total of 8 years, 2 months and 4 days 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 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 might direct a general discharge if such was merited by the Soldier'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.  The applicant’s service record shows he received an Article 15 for wrongful use of marijuana during the period under review.  

2.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under chapter 14 for misconduct.  It appears the separation authority considered the applicant's prior honorable service and length of service and characterized his service as general under honorable conditions.

3.  Based on the seriousness of the applicant's offense, his service does not meet the standards of acceptable conduct and performance of duty for Army personnel to warrant recommendation of an honorable discharge.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100011002





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ABCMR Record of Proceedings (cont)                                         AR20100011002



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