IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100012825 


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 an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, he was young, made mistakes, was ignorant about himself, and would appreciate being given an honorable discharge.

3.  The applicant does not provide any additional documentary evidence.

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 3 July 1962.  On 6 August 1980 at 18 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 75E (Personnel Actions Specialist).  The highest rank/grade he attained while serving on active duty was private/E-1.

3.  His record reveals that on 20 May 1981 he was convicted by a summary court-martial for wrongful possession of marijuana and failure to repair.

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 29 June 1981 for wrongful possession of marijuana and on 14 October 1981 for disorderly conduct.

5.  On 2 November 1981, 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 14-33b, for misconduct based on his continuous willful acts in violation of the UCMJ.

6.  On 2 November 1981, he acknowledged notification of his proposed discharge from the Army.  On 17 November 1981, 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 an other than honorable discharge, and of the procedures and rights that were available to him.  He requested consideration of his case by a board of officers.

7.  On 26 January 1982, a board of officers determined the applicant was undesirable for further retention because of frequent incidents of a discreditable nature.  The board recommended that he be discharged for acts of misconduct and issued an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 10 March 1982, the separation authority approved his discharge under Army Regulation 635-200, paragraph 14-33b, and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 15 March 1982, he was discharged accordingly.

9.  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, paragraph 14-33b, by reason of misconduct for frequent incidents of a discreditable nature with civil or military authorities.  He completed a total of 1 year, 7 months, and 10 days of creditable active service with no lost time.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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, 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.

13.  Army Regulation 635-200, paragraph 3-7b, 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 request that his discharge be upgraded was carefully considered.

2.  He contends that he was young and made mistakes at the time of his service.  Records show he was almost 19 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 summary court-martial he received and the NJP he received on two occasions for possession of illegal drugs and disorderly conduct.  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 were therefore appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to a general or 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)                                         AR20100012825



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ABCMR Record of Proceedings (cont)                                         AR20100012825



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