BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100017945 


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 that his discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he picked up his drug habit while serving in Korea.  He goes on to state the only way he could handle the stress was to smoke weed and that eventually it led to his discharge.  He further states life after his discharge has been nothing but trouble and that drugs have ruined his life.  He continues by stating he loved the military and he has found that he does not know how to function outside of the military.  He desires to have his discharge upgraded so he can get help with his problem. 

3.  The applicant provides a handwritten letter explaining his application.

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 was born on 4 August 1961 and enlisted in the Regular Army in Newark, New Jersey on 10 March 1982 for a period of 4 years, training as a single channel radio operator and assignment to Korea.  He completed his basic training at Fort McClellan, Alabama and his advanced individual training at Fort Gordon, Georgia before being transferred to Korea.

3.  He completed his tour in Korea on 23 September 1983 and was transferred to Fort Riley, Kansas.  

4.  On 13 November 1983, nonjudicial punishment was imposed against him for the wrongful possession of marijuana.  His punishment consisted of a reduction to the pay grade of E-2 and extra duty. 

5.  He was advanced to the pay grade of E-3 on 19 July 1984 and to the pay grade of E-4 on 1 November 1984.

6.  On 23 February 1985, he was apprehended for assaulting his wife in government quarters.  Marijuana was discovered in his quarters when he was apprehended and it was confiscated and tested.

7.  On 10 July 1985, nonjudicial punishment was imposed against him for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-3 and extra duty.

8.  On 12 August 1985 the applicant’s commander notified the applicant that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12d for misconduct – abuse of illegal.  He indicated that the applicant was charged with possession of marijuana and later tested positive for marijuana.  He went on to state that he had written numerous bad checks, that he could not seem to be at his place of duty on numerous occasions and required constant supervision.

9.  After consulting with counsel the applicant waived all of his rights and elected not to submit a statement in his own behalf.

10.  The appropriate authority (a major general) approved the recommendation for discharge on 12 September 1985 and directed that he be discharged under other than honorable conditions.

11.  Accordingly, he was discharged under other than honorable conditions on 24 September 1985 under the provisions of Army Regulation 635-200, paragraph 14-12c due to misconduct – abuse of illegal drugs.  He had served 3 years, 6 months, and 15 days of total active service and he had no individual awards.

12.  There is no evidence 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.

13.  Army Regulation 635-200 (Enlisted Separations) 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, and commission of a serious offense.  A discharge under other than honorable conditions is normally considered appropriate.

14.  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.

15.  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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted by the Board; however, they are not sufficiently mitigating to warrant relief when compared to his overall record of undistinguished service and his misconduct.  His service simply does not rise to the level of a general or 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)                                         AR20100017945



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ABCMR Record of Proceedings (cont)                                         AR20100017945



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