IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100016478 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect a characterization of service of honorable based upon a Department of Veterans Affairs (VA) letter.

2.  The applicant states that his discharge has now been changed to fully honorable and he desires his DD Form 214 to be corrected because it is preventing him from receiving educational benefits.

3.  The applicant provides a letter from the Department of Veterans Affairs (VA), dated 12 April 2010, indicating that the character of his service is “Honorable” and that he was granted disability compensation of 60 percent.

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 9 September 1993 for a period of 5 years and training as a military policeman.  He completed his one-station unit training at Fort McClellan, AL and he was transferred to Sierra Army Depot, Herlong, CA.  He was advanced to the pay grade of E-4 on 9 November 1995.

3.  On 28 October 1997 nonjudicial punishment was imposed against the applicant under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for the wrongful use of marijuana.

4.  On 20 November 1997 the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct - commission of a serious offense, due to the wrongful use of marijuana.

5.  After consulting with defense counsel the applicant waived all of his rights and indicated that he was submitting a statement in his own behalf; however, there is no indication that such as statement was ever submitted.

6.  On 5 December 1997, the appropriate authority approved the recommendation for discharge and directed that the applicant be furnished a General Discharge Certificate.

7.  Accordingly, on 19 December 1997 he was discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct with the issuance of a general discharge characterized as under honorable conditions.  He completed
4 years, 11 months, and 3 days of total active service.

8.  There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions is normally considered appropriate.


10.  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’s contentions have been noted and appear to lack merit.  There is no evidence of record that shows his discharge has been properly upgraded by an Army agency authorized to affect a discharge upgrade.  Although the applicant provides a letter from the VA that indicates his character of discharge from the Army was honorable, it does not serve as an upgrade of his discharge.  

2.  Additionally, if the applicant wishes to apply for an upgrade to his discharge, he should apply to the Army Discharge Review Board within that board's 15-year statute of limitation.

3.  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)                                         AR20100016478



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ABCMR Record of Proceedings (cont)                                         AR20100016478



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