IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100015558 


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, in effect, that his general discharge under honorable conditions be upgraded to an honorable discharge. 

2.  The applicant states he was being harassed by his section staff sergeant.  He states he is applying for a government job.

3.  The applicant provides copies of his:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 5 March 1982
* DD Form 214 with a separation date of 8 February 1985
* separation from the California Army National Guard effective 4 September 2003
 
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 29 December 1983 for a period of 3 years.  He had previously completed 2 years, 3 months, and 2 days in the U.S. Army Reserve.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 11C (Indirect Fire Infantryman).

3.  On 10 January 1984, the applicant was assigned to the 4th Battalion, 
12th Cavalry at Fort Polk, LA.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on:

* 30 October 1984 for wrongful use of marijuana
* 12 January 1985 for wrongful use of marijuana

5.  On 19 January 1985, the applicant received a mental status evaluation.  According to the DA Form 3822-R (Report of Mental Status Evaluation) the examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings.

6.  On 24 January 1985, the applicant's commander notified him that action was being initiated to separate him under the provisions of Chapter 14 of Army Regulation 635-200 (Personnel Separations) based on his having received NJP on two occasions for a positive urinalysis.  The commander advised the applicant of his right to:

* consult with counsel
* obtain copies of documents that would be sent to the separation authority supporting the proposed separation action
* request a hearing before an administrative separation board if he had more than 6 years service
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge

7.  On 30 January 1985, the applicant submitted a statement acknowledging he had been advised by counsel of the basis for the contemplated separation action for abuse of illegal drugs.  The applicant did not submit statements in his own behalf.  The applicant acknowledged that as a result of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.

8.  On 30 January 1985, the applicant's commander recommended that he be eliminated from the service before the expiration of his term of service due to his having received NJP on two occasions for a positive urinalysis.  The commander stated the applicant had a history that demonstrated poor performance and a lack of desire to adapt to discipline.

9.  The appropriate authority approved the recommendation for the applicant’s discharge under the provisions of paragraph 14-12c, Army Regulation 635-200 with the issuance of a General Discharge Certificate.  

10.  On 8 February 1985, the applicant was discharged under the provisions of Chapter 14 of Army Regulation 635-200 by reason of misconduct.  He had completed 1 year, 1 month, and 10 days of active service during the period under review that was characterized as under honorable conditions.  

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

12.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation dealt with separation for various types of misconduct.  Paragraph 
14-12c provided for the separation of a Soldier by reason of the commission of a serious offense, which included drug abuse.  The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14.

13.  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 requests that his general discharge under honorable conditions should be upgraded to an honorable discharge.  He contends he was being harassed by his section staff sergeant.

2.  The applicant has not submitted any substantive evidence showing his section staff sergeant was harassing him.  

3.  The applicant contends he is applying for a government job.  However, the ABCMR does not upgrade properly-issued discharges for the purpose of enhancing an applicant's employment opportunities.

4.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

5.  The positive urinalyses the applicant received clearly show he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or significant achievement.  

6.  In view of the above, there is insufficient basis to upgrade the applicant's 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)                                         AR20100015558





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ABCMR Record of Proceedings (cont)                                         AR20100015558



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