IN THE CASE OF:
BOARD DATE: 16 February 2011
DOCKET NUMBER: AR20100021004
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 discharge under other than honorable conditions be upgraded to a general discharge.
2. The applicant states:
* he had a lapse in judgment while on active duty and was found guilty of drug use
* he has led a clean life since his discharge
* he believes everyone deserves a second chance
3. The applicant provides no additional evidence in support of 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. Having prior service in the Army National Guard, the applicant enlisted in the Regular Army on 25 February 1986. He served as a cannon crewmember and was promoted to specialist/E-4 effective 1 September 1986.
3. On 31 August 1988, nonjudicial punishment (NJP) was imposed against the applicant for four specifications of failure to repair.
4. On 27 September 1988, NJP was imposed against the applicant for using cocaine.
5. On 25 October 1988, a bar to reenlistment was imposed against the applicant.
6. On 2 December 1988, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraphs 14-12a and 14-12c, for misconduct.
7. On 2 December 1988, the applicant consulted with counsel, waived consideration of his case by an administrative separation board, and elected not to submit a statement on his own behalf.
8. On 14 December 1988, the separation authority approved the recommendation for separation and directed the issuance of a discharge under other than honorable conditions.
9. He was discharged under other than honorable conditions on 6 January 1989 under the provisions of Army Regulation 635-200, chapter 14, for misconduct (commission of a serious offense). He completed a total of 3 years, 2 months, and 8 days of creditable active service.
10. There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs. The issuance of a discharge under other than honorable conditions was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the member's overall record.
12. 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. Good post-service conduct alone is normally not a basis for upgrading a discharge.
2. Since the applicant's record of service included two NJP's and a bar to reenlistment, his record of service was not satisfactory. The applicant's current clean life is commendable but not sufficient to warrant a general discharge.
3. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.
4. The type of discharge directed and the reasons were appropriate considering all the facts of the case.
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) AR20100021004
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ABCMR Record of Proceedings (cont) AR20100021004
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