IN THE CASE OF:	  

		BOARD DATE:	    30 September 2010

		DOCKET NUMBER:  AR20100011540 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states the following:

* He was discharged for drug use but he was young, immature, and made mistakes
* He has not been involved with drugs or arrested since his discharge
* He is now married, has a son, and has worked regularly
* He wants his discharge upgraded so he can go to school

3.  The applicant provides four statements of support, a copy of his DD Form 257A (General Discharge Certificate), and 10 certificates. 

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 was born on 15 October 1956.  On 4 January 1984, at 27 years of age, he enlisted in the Regular Army.  Records show he completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 31K (Combat Signaler).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  Item 9 (Awards, Decorations & Campaigns) of his DA Form 2-1 (Personnel Qualification Record) shows he was awarded the Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars.

4.  His record reveals he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for the abuse of illegal drugs on 15 March 1984 and 14 August 1985.

5.  On 29 August 1985, at Schofield Barracks, HI, he was notified by his commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, for his recurrent abuse of illegal drugs.  He was told the least favorable characterization he could receive was a general discharge under honorable conditions.

6.  On 30 August 1985, he acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army; the effect on future enlistment in the Army; the possible effects of a general, under honorable conditions discharge; and of the procedures and rights that were available to him.  He voluntarily consented to this discharge.  He further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.

7.  On 4 September 1985, his chain of command recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12b.

8.  On 9 September 1985, the separation authority approved his discharge under Army Regulation 635-200, paragraph 14-12b, and directed issuance of a General Discharge Certificate.  On 25 September 1985, he was discharged accordingly.  


The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation
635-200, chapter 14-12b, by reason of misconduct - pattern of misconduct with an under honorable conditions characterization of service.  He completed a total of 1 year, 8 months, and 22 days of creditable active service with no time lost.

9.  Four statements of support provided by the applicant, dated in January 2010, in effect state he is a dedicated family man, involved with his community, and a good person.
 
10.  Ten certificates provided by the applicant, dated from October 1975 to September 2004, reflect various courses and programs he has completed.

11.  Army Regulation 635-200 (Personnel Separations) 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, 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 contention that his discharge should be upgraded was carefully considered and it was determined there is insufficient evidence to support this request.

2.  He contends that his discharge should be upgraded because he was young and immature at the time of his service.  Records show that the applicant was
27 years of age at the time of his first offense.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.
 
3.  The evidence of record shows he demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on two occasions for abuse of illegal drugs.  Accordingly, his immediate commander initiated separation action against him.

4.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason for separation therefore were appropriate considering all the facts of the case.  Based on his overall record, the applicant's service does not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  Although the applicant's post-service conduct has been noteworthy, it does not mitigate the fact that he abused illegal drugs during his military service.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

7.  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)                                         AR20100011540



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ABCMR Record of Proceedings (cont)                                         AR20100011540



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