IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100012199 


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 under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states he was 19 years of age and very young and immature at the time.  He did not know the seriousness and ultimate consequences of his actions at the time which he truly regrets.

3.  The applicant provides no additional documents in support of this 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 4 March 1986 at the age of 17 years, 9 months, and 15 days.  He completed initial entry training and was awarded military occupational specialty 63S (Heavy Wheel Vehicle Mechanic).

3.  On 25 September 1986, the Fort Riley, Kansas, Provost Marshal Office revoked his privilege to drive a privately-owned vehicle on Fort Riley for failure to maintain a State vehicle driver's license.  On 23 March 1987, the Provost Marshal Office again revoked his privilege to drive a privately-owned vehicle on Fort Riley for failure to maintain the required motor vehicle liability insurance.

4.  He was counseled on the following occasions:

	a.  26 May 1987, for failure to follow instructions;

	b.  3 June 1987 for failure to make formation for team training; and

	c.  4 June 1987, for failure to make formation for physical training.

5.  He accepted nonjudicial punishment on the following occasions:

	a.  25 June 1987, for departing his place of duty without authority;

	b.  13 October 1987, for wrongfully using marijuana; and

	c.  10 December 1987, for wrongfully possessing a small trace of marijuana and for willfully and unlawfully altering his military identification card.

6.  On 16 December 1987, he was notified by his unit commander of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct (commission of a serious offense).  His unit commander cited the applicant's two revocations of his driver's privileges, identification card falsification, and two violations of possessing marijuana as the reasons for the proposed separation action.  The applicant acknowledged the contemplated action and after consulting with counsel, he waived consideration of his case by an administrative separation board and elected not to submit a statement in his own behalf.

7.  On 8 February 1988, the appropriate authority approved the recommendation for discharge and directed the applicant's service be characterized as under other than honorable conditions.  Accordingly, he was discharged on 16 February 1988 with his service characterized as under other than honorable conditions.

8.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Under the Uniform Code of Military Justice, the maximum punishment allowed for possession of marijuana is a dishonorable discharge and confinement for 2 years.

10.  Army Regulation 635-200 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 that could result in a punitive discharge, convictions by civil authorities, desertion, or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

11.  Paragraph 3-7a of 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.

12.  Paragraph 3-7b of Army Regulation 635-200 provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to honorable because he was young and immature has been carefully considered.

2.  The record shows he completed initial entry training.  This shows he was mature enough to satisfactorily serve.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their terms of military service.

3.  The evidence of record confirms that his administrative 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 reasons were therefore appropriate considering all of the facts of the case.

4.  His record of indiscipline includes a number of counseling statements, revocation of driving privileges on two occasions, and nonjudicial punishment on three occasions (two for marijuana possession).  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

5.  Based on the above, there is no basis to grant 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)                                         AR20100012199



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ABCMR Record of Proceedings (cont)                                         AR20100012199



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