IN THE CASE OF:	  

		BOARD DATE:	  25 January 2011

		DOCKET NUMBER:  AR20100019663 


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 a general discharge.

2.  The applicant states:

* he was young when he was discharged for drug use
* he served over 3 years and he was part of the 62nd Engineer Battalion, Fort Hood, TX
* he served in Honduras for a brief period, he had a letter of recommendation, and an Army Achievement Medal
* he had a problem with marijuana but it shouldn't override the good he did while he was a Soldier
* he has suffered long enough because of [his discharge]
* he lost his college fund and medical benefits and he can receive them if his discharge is upgraded

3.  The applicant provided 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 was born on 16 December 1966.  On 29 December 1986, at 20 years of age, he enlisted in the Regular Army.  He completed the required training and he was awarded military occupational specialty 51B (Carpentry & Masonry Specialist).  On 2 June 1987, he was assigned to Company A, 62nd Engineer Battalion, Fort Hood.

3.  On 6 June 1987, he was apprehended by the Killeen, TX, police for drunk driving and on 29 June 1987, he received a General Officer Letter of Reprimand (GOLOR) for driving while intoxicated (DWI).

4.  His records reveal an extensive history of counseling by members of his chain of command for various infractions to include repeatedly failing to pay his just debts, poor attitude, failing inspections, missing formation, not being at his appointed place of duty, violating the barracks visitation policy, making personal threats, being disrespectful, failing to follow instructions, failing to repair, lack of motivation, and several other infractions.

5.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) as follows:

* On 26 September 1989, for being absent without leave (AWOL) from 21 August 1989 to 8 September 1989 and for failing to obey a lawful order
* On 30 October 1989, for breaking restriction and for wrongfully using marijuana
* On 6 February 1990, for failing to pay just debts and for wrongfully using marijuana

6.  On 21 November 1989, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12c, for misconduct - abuse of illegal drugs based on his use of marijuana, his AWOL, and his DWI.  He was told he was being recommended for an under other than honorable conditions discharge.


7.  On 8 December 1989, 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 an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  He waived consideration of his case by a board of officers.  He further acknowledged he understood if he were issued an under other than honorable conditions discharge, he could expect to encounter substantial prejudice in civilian life.

8.  On 13 February 1990, his chain of command recommended approval of his separation under the provisions of Army Regulation 635-200, paragraph 14-12c, with an under other than honorable conditions discharge.  

9.  On 20 February 1990, the separation authority approved his discharge under Army Regulation 635-200, paragraph 14-12c, with an under other than honorable conditions discharge.  On 28 February 1990, 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 with an under other than honorable conditions characterization of service.  He completed a total of 3 years, 1 month, and 13 days of creditable active service with 18 days of time lost.

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.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

13.  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 evidence of record shows he demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the multiple counseling's he received.  On 30 October 1989, he received NJP for wrongfully using marijuana.  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 were appropriate considering all the facts of the case.  Based on his overall record, his service does not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to a general discharge.

3.  Records show he was 20 years of age at the time of his first offense.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed 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 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)                                         AR20100019663



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100019663



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1