BOARD DATE: 16 February 2011
DOCKET NUMBER: AR20100021224
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 under honorable conditions discharge to an honorable discharge.
2. He makes no additional statement.
3. The applicant provides no additional documentation in support of this case.
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 applicants 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 applicants 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 17 November 1982 and successfully completed basic training and advanced individual training. He was awarded military occupational specialty (MOS) 11B (Infantryman).
3. On 9 March 1984, he was counseled on alcohol and drug abuse and its consequences.
4. On 17 March 1988, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from a superior noncommissioned officer (NCO).
5. On 2 May 1984, he accepted NJP under Article 15, UCMJ for wrongful use of marijuana.
6. On 6 June 1984, he accepted NJP under Article 15, UCMJ for failure to remain awake while posted as a sentinel [derelict in duty].
7. A DA Form 4856-R (General Counseling Form), dated 21 June 1984, shows he was counseled for poor performance and behavior.
8. On 29 June 1984, his commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct. The reasons cited by the commander were his receiving three Article 15's [one field grade and two company] and substandard performance and behavior.
9. On 2 July 1984, he was advised by consulting counsel of the basis for the contemplated separation action and the impact of the discharge action. He signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14. He requested counsel, waived his right to an administrative board, and elected not to submit a statement on his own behalf.
10. On 10 July 1984, the separation authority approved the elimination packet and directed he receive an under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 14-12b, for misconduct. On
17 July 1984, he was discharged from the service, in pay grade E-1, after completing 1 year, 8 months, and 1 day of creditable active service during the period under review.
11. Army Regulation 635-200 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 conviction by civil authorities. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
12. 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 members service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.
2. In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.
3. His records show that he was administered three Article 15 actions, wrongfully used marijuana and his performance and behavior was substandard. Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, which are required for issuance of an honorable discharge.
4. In view of the foregoing, there is no basis for granting his request.
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) AR20100021224
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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