IN THE CASE OF:	  

		BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100022005 


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 discharge be upgraded to honorable.

2.  The applicant states he was discharged because of a drug problem and he has been drug free over 10 years.  He served his country and the Army well before his drug problem.  He stands on the integrity that was instilled in him during his military career.  He has been happily married 7 years, he is raising eight children, and he attends church regularly.  With God in his life, he has overcome the reason that he received a general discharge.  He currently has an associate's degree and he is working on a bachelor's degree.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 on 22 August 1986 and he held military occupational specialty 71L (Administrative Specialist).  

3.  Between November 1989 and October 1990, he was frequently counseled by several members of his chain of command for various infractions including being late for duty, failing to report, and failing to maintain his billet to standards.

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

* 26 October 1990 for failure to repair
* 14 January 1991 for failure to repair
* 24 September 1991 for wrongful use of marijuana

5.  On 14 January 1992, 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, for misconduct, specifically the abuse of illegal drugs.

6.  On 14 January 1992, he acknowledged receipt of the notification of his proposed discharge action.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and of 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 discharge, he could expect to encounter prejudice in civilian life.  

7.  His chain of command recommended approval of his separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general discharge.

8.  On 26 January 1992, the separation authority approved his discharge under Army Regulation 635-200, paragraph 14-12c, and directed the issuance of a General Discharge Certificate.  On 18 February 1992, he was discharged accordingly.




9.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - abuse of illegal drugs, in the rank/grade of private/E-1 with a General Discharge Certificate.  He had completed 5 years, 5 months, and 27 days of active service with no recorded lost time.

10.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows the Army Achievement Medal, National Defense Service Medal, Army Service Ribbon, and the Overseas Service Ribbon.

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.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct that a general discharge be issued if such is merited by the Soldier's overall record.

13.  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 two occasions for failure to repair and on one occasion for the use of illegal drugs.  Accordingly, his immediate commander initiated separation action against him.
 
2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized 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 for Army personnel.  Therefore, he is not entitled to an honorable discharge.
3.  Although the applicant's 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)                                         AR20100022005



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ABCMR Record of Proceedings (cont)                                         AR20100022005



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