IN THE CASE OF:	  

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100021411 


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, in effect, he made a mistake and is still paying for it.  He had a lot of marital problems, was young, and did not know any better.  He has not had any problems with the law since his time in the service and tries to set an example for the new generation of how one mistake can cause a lot of life problems.  He has been a good citizen in his community.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a police records check, and five statements of support.

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 records show he enlisted in the Regular Army (RA) on 11 November 1975 and held military occupational specialty 11B (Light Weapons Infantryman).  He was honorably discharged on 23 May 1979 for the purpose of immediate reenlistment.  The DD Form 214 he was issued for this period of service shows he completed 3 years, 6 months, and 13 days of active service with no lost time.  

3.  On 24 May 1979, he reenlisted in the RA.  The highest rank/grade he attained while on serving on active duty was staff sergeant/E-6.

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

* on 14 November 1984, failure to repair
* on 24 March 1987, absent without leave (AWOL) from 13 - 24 January 1987
* on 23 October 1987, wrongful use of cocaine

5.  On 21 January 1988, 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, specifically the abuse of illegal drugs.

6.  On 28 January 1988, 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.  He waived the right to consideration of his case by an administrative separation board.

7.  On 3 February 1988, 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.

8.  On 9 February 1988, the separation authority approved his discharge under Army Regulation 635-200, paragraph 14-12c, and directed issuance of a General Discharge Certificate.  On 3 March 1988, he was discharged accordingly.

9.  The DD Form 214 he was issued for this period of service confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - abuse of illegal drugs in the rank/grade of specialist four/E-4 with a general under honorable conditions characterization of service.  He completed a total of 12 years, 3 months, and 23 days of creditable active service.

10.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued for this period of service shows the Army Service Ribbon, Overseas Service Ribbon, Army Commendation Medal, Expert Infantryman Badge, Noncommissioned Officer Professional Development Ribbon with Numeral 2, Army Good Conduct Medal (3rd Award), and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

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.  The applicant provides five statements of support which state, in effect, he is dependable, hard working, and an excellent model citizen.

13.  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.

14.  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 on three occasions for failure to repair, AWOL, and 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 during some of his active service he may have served honorably and his 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 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)                                         AR20100021411





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ABCMR Record of Proceedings (cont)                                         AR20100021411



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