IN THE CASE OF:	  

		BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100013326 


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 under other than honorable conditions discharge to an honorable discharge.

2.  He states during his service in Hawaii, he was surrounded by pressures from his platoon that contained a lot of drug users.  He offers he no longer has issues with marijuana since he left Hawaii.  He adds he would like his discharge upgraded in order to serve as an adult sponsor in his son's Civil Air Patrol flight.

3.  He provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 enlisted in the Regular Army on 18 February 1986. 

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions for the wrongful use of marijuana.

4.  On 1 July 1987, charges were preferred against the applicant for violation of:

* Article 112a, by wrongfully possessing 3.21 grams of marijuana and wrongfully using marijuana
* Article 92, by wrongfully having in his possession drug paraphernalia

5.  On 21 July 1987, he consulted with counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In requesting a chapter 10 discharge, he acknowledged he was making the request of his own free will, that he was afforded the opportunity to speak with counsel, that he understood he may be furnished a discharge under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Veterans Administration benefits, and that he may expect to encounter substantial prejudice in civilian life because of an  under other than honorable conditions discharge.

7.  On 4 August 1987, the appropriate authority approved the applicant's request for discharge and directed the issuance of an under other than honorable conditions discharge.

8.  On 14 August 1987 he was discharged accordingly.  His DD Form 214 shows he received an under other than honorable conditions character of service.  It also shows he completed 1 year, 5 months, and 27 days of net active service this period.

9.  On 30 October 1987, the applicant appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 19 August 1988, the ADRB denied his appeal citing that the board determined he was properly and equitably discharged.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charge has been preferred submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  

11.  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.

12.  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 states his discharge should be upgraded so he can serve as an adult sponsor in his son's Civil Air Patrol flight.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant an upgrade.

2.  The evidence of record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  The record further shows the applicant voluntarily requested separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial.

3.  The applicant's record of service included two NJPs and charges preferred against him for the wrongful possession and use of marijuana and the possession drug paraphernalia.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and 
performance of duty for Army personnel.  This misconduct rendered his service as unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100013326



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ABCMR Record of Proceedings (cont)                                         AR20100013326



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