IN THE CASE OF:	  

		BOARD DATE:	    30 September 2010

		DOCKET NUMBER:  AR20100011101 


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

2.  The applicant states he would like to have his discharge changed for employment purposes and benefits.

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 12 August 1986.

3.  On 21 September 1987 and 23 November 1987, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for disobeying a lawful order from a staff sergeant and for wrongfully using some amount of cocaine and marijuana on or about 27 August 1987.

4.  In September 1987, the applicant was barred from reenlistment for receipt of the Article 15 imposed on 21 September 1987 for the use of illegal drugs.

5.  On 10 December 1987, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct – commission of a serious offense.  He was advised of his rights.  The applicant acknowledged notification of the separation action.

6.  In a 19 January 1988 statement, the unit commander stated the applicant returned the election of his rights unsigned.  The unit commander stated that counsel attached a handwritten memorandum to the chapter 14 packet indicating the following:

* he had counseled [applicant]
* [applicant] refused to sign the rights statement because he wanted to stay in the Army 
* [applicant] was going to get statements together to submit to the separation authority; however, no such statements were ever submitted

7.  The separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense – with issuance of a General Discharge Certificate.

8.  The applicant was discharged on 17 February 1988 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He completed 1 year, 6 months, and 6 days of 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 the regulation.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  Although the applicant would like to have his discharge upgraded for employment purposes and benefits, these issues are not sufficiently mitigating factors for upgrading a discharge.

2.  The evidence of record shows the applicant tested positive for cocaine and marijuana and received an Article 15 for this offense.  He also received an Article 15 for disobeying a lawful order from a staff sergeant and a bar to reenlistment.

3.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under the provisions of chapter 14 for misconduct.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of a fully honorable discharge and appropriately characterized his service as general under honorable conditions.

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)                                         AR20100011101



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ABCMR Record of Proceedings (cont)                                         AR20100011101



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