IN THE CASE OF:
BOARD DATE: 28 October 2010
DOCKET NUMBER: AR20100012202
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 from the Delaware Army National Guard be upgraded to honorable.
2. The applicant states:
* He served his country and completed his duties in the Army National Guard for 12 years
* Since his discharge he has been moving forward in a positive manner
* He received his Associate's Degree in Culinary Arts
3. The applicant provides:
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* NGB Form 22A (Correction to NGB Form 22)
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. Having prior service, the applicant enlisted in the Delaware Army National Guard on 27 June 1984 and he served as a food service specialist. He attained the rank of sergeant on 6 December 1986.
3. On 20 October 1990, the applicant was notified of his pending separation under the provisions of Army Regulation 135-178 (Separation of Enlisted Personnel), chapter 7, for misconduct (drug abuse). The reason cited for the proposed separation was substance abuse (he tested positive for cocaine on a urinalysis on 8 September 1990).
4. Discharge orders show the applicant was discharged under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26q with a general discharge on 20 May 1991.
5. The applicant's NGB Form 22 was corrected to show he was discharged on 20 May 1991 with a general discharge under the provisions of NGR 600-200, paragraph 8-26q for misconduct (acts or patterns of misconduct).
6. On 24 September 1999, the Army Discharge Review Board denied the applicant's request for an honorable discharge.
7. NGR 600-200, in effect at the time, set forth the basic authority for the personnel management of enlisted personnel of the Army National Guard. Paragraph 8-26q of this regulation stated that a Soldier would be discharged from the Army National Guard for acts or patterns of misconduct, which included misconduct (abuse of illegal drugs).
8. Army Regulation 135-178 provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.
9. Army Regulation 135-178 provides, in pertinent part, that the honorable characterization is appropriate when the quality of the members service generally has met the standards of acceptable conduct and performance of duty
for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.
DISCUSSION AND CONCLUSIONS:
1. Good post-service conduct alone is normally not a basis for upgrading a discharge.
2. Evidence of record shows the applicant, a sergeant, was discharged under honorable conditions (a general discharge) from the Delaware Army National Guard for misconduct (drug abuse). 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.
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) AR20100012202
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ABCMR Record of Proceedings (cont) AR20100012202
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