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		IN THE CASE OF:	  

		BOARD DATE:	    1 March 2011

		DOCKET NUMBER:  AR20100020151 


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 general discharge to an honorable discharge.

2.  The applicant states he made a mistake many years ago, but has changed and he is no longer involved in that lifestyle.  This incident should not overshadow the years of hard work and good record that he had before this situation.  He states he is 12 years clean of all drugs.

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 enlisted in the Regular Army on 26 June 1987 for a period of 
4 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 77F (Petroleum Supply Specialist).  He was assigned to the 407th Supply and Services Battalion at Fort Bragg, NC on 28 January 1988.

3.  On 15 May 1989, the applicant was evaluated by a captain of the Medical Corps.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

4.  On 16 June 1989, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using cocaine.

5.  On 29 November 1989, the applicant pled guilty in Lincoln County, NC District Court to driving while his license was revoked (DWLR).  He was sentenced to not less than and not more than 24 months imprisonment with the North Carolina Department of Corrections. 

6.  On 11 January 1990, the applicant was again evaluated by a captain of the Medical Corps.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501.  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

7.  On 22 January 1990, the applicant's commander notified him that action was being recommended to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, due to his conviction by civilian authorities for DWLR.  The commander recommended a general discharge.

8.  The commander advised the applicant of his right to:

* have his case considered by a board officers if he had over 6 years of service
* appear in person before a board officers
* submit statements in his own behalf
* be represented by counsel
* to waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge 

9.  The applicant waived his rights and did not submit a statement in his own behalf.

10.  On 22 January 1990, the applicant's commander recommended him for discharge by reason of his civil conviction for DWLR and sentence of 24 months imprisonment.  The commander stated the applicant had been given numerous opportunities to correct his behavior and performance.  However, he had been unwilling to put forth the extra effort required to work his way back.

11.  On 1 February 1990, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of a General Discharge Certificate.

12.  On 14 February 1990, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of civil conviction, with a general discharge.  He completed 2 years, 6 months, and 12 days of creditable active service with 35 days of time lost.

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

14.  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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

15.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge under honorable conditions should be upgraded to an honorable discharge based on his hard work and good record prior to his conviction.  

2.  The applicant was sentenced to 24 months imprisonment by a civil court.  Therefore, it was appropriate to process him for separation under the provisions of Army Regulation 635-200, chapter 14, prior to the expiration of his term of service.

3.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, the type of discharge and the reason for separation were appropriate considering all the facts of the case.

4.  A discharge under other than honorable conditions was normally considered appropriate when a Soldier was discharged under the provisions by which the applicant was processed.  Therefore, the separation authority clearly considered the applicant's entire record of service in that he directed the applicant be issued a General Discharge Certificate.

5.  The ABCMR does not upgrade discharges based on the passage of time.  Therefore, there is insufficient basis to upgrade the applicant's discharge to honorable.

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)                                         AR20100020151



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ABCMR Record of Proceedings (cont)                                         AR20100020151



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