BOARD DATE:	 14 April 2011

		DOCKET NUMBER:  AR20100025314


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 an upgrade of his general under honorable conditions discharge to honorable.

2.  The applicant states he served 11 years in the Army with an exemplary service record.  He states a single error cost him his career.  He states he was unjustly discharged with a general discharge and he has more than paid the price for his actions.

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 (RA) on 12 December 1975.  He completed training and was awarded military occupational specialty (MOS) 64C (Motor Transport Operator).

3.  On 29 September 1978, he reenlisted in the RA for a 4-year term to attend training in MOS 93H (Air Traffic Control Tower Operator).  On18 May 1979 after completion of the required training, he was reclassified and awarded MOS 93H.

4.  On 7 November 1985, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct – abuse of illegal drugs.  On 8 November 1985, he acknowledged receipt of this notification.

5.  On 18 November 1985, he consulted with legal counsel and he was advised of the basis for the contemplated separation, the possible effects of a discharge under other than honorable conditions, and the rights available to him.  He elected to be represented by counsel and to have his case considered by an administrative separation board.  He did not elect to make or submit statement(s) in his own behalf, but he did request copies of any documents sent to the separation authority supporting the proposed separation.

6.  On 30 January 1986, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully using marijuana at an unknown location between 4 August and 3 September 1985, the use of which was discovered through urinalysis testing of a urine sample submitted to military authorities on 3 September 1985.

7.  On 24 March 1986, he consulted with legal counsel and voluntarily waived his right to an administrative separation board.

8.  On 27 March 1986, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14, and directed he receive a general under honorable conditions discharge.  On 8 April 1986, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged by reason of misconduct – drug abuse.  This form also shows he completed a total of 10 years, 3 months, and 27 days of net active service.  The highest rank/grade he attained while serving on active duty was staff sergeant/E-6.

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

10.  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.

11.  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 applicant's request for an upgrade of his general under honorable conditions discharge was carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The evidence of record shows he consulted with counsel and was advised of the basis for the separation action.

3.  Based on his record of indiscipline including illegal drug use, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  In view of the foregoing, there is no basis for granting the requested relief.


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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20100025314



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