IN THE CASE OF:	  

		BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100018290 


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 his general under honorable conditions discharge be upgraded to honorable.

2.  The applicant states his general discharge should not haunt him after 23 years.  He has a college education, has been a licensed certified public accountant for over 15 years, and has not had any problems since he was discharged from the service.

3.  The applicant provides no additional 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 enlisted in the Regular Army on 1 March 1983 and he held military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade he attained while serving on active duty was sergeant/
E-5.

3.  On 18 March 1987, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongful use of marijuana.

4.  On 19 March 1987, a bar to reenlistment against him was approved for his illegal use of drugs.  He was advised that he may apply for immediate discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 16, if he perceived he would not be able to overcome the bar to reenlistment.

5.  On 1 April 1987, he requested immediate discharge under the provisions of Army Regulation 635-200, chapter 16.  On 6 April 1987, he was notified by his immediate commander that his request for immediate discharge under the provisions of Army Regulation 635-200, chapter 16, was denied.

6.  On 3 April 1987, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct, specifically the abuse of illegal drugs.

7.  On 7 April 1987, he acknowledged receipt of the notification of his proposed discharge from the Army.  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 a general discharge, and of the procedures and rights that were available to him.  He further acknowledged he understood if he were issued a general under honorable conditions discharge, he could expect to encounter prejudice in civilian life.

8.  On 22 April 1987, his chain of command recommended approval of his separation under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general under honorable conditions discharge.

9.  On 27 April 1987, the separation authority approved his discharge under Army Regulation 635-200, paragraph 14-12c, and directed issuance of a General Discharge Certificate.  On 6 May 1987, he was discharged accordingly.

10.  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, chapter 14, by reason of misconduct (commission of a serious offense) in the rank/grade of specialist four/E-4 with a general under honorable conditions characterization of service.  He completed a total of 4 years, 2 months, and 2 days of creditable active service with 3 days of lost time.

11.  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.

12.  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.  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.

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 evidence of record shows he demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received for the use of illegal drugs.  Accordingly, his immediate commander initiated separation action against him.
 
2.  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 therefore were 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 an honorable discharge.

3.  Although the applicant's post-service conduct may be noteworthy, it does not mitigate the fact that he abused illegal drugs during his military service.



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 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)                                         AR20100018290



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ABCMR Record of Proceedings (cont)                                         AR20100018290



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