IN THE CASE OF:  

		BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100025632 


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 discharge and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was awarded the Army Achievement Medal.

2.  The applicant states he developed an alcohol and drug problem while in the Army.  He was young at the time, and since he was discharged he has overcome those problems.
 
3.  The applicant provides no documentation to support his request.

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 on 6 April 1983.  He completed training and was awarded military occupational specialty (MOS) 12C (Bridge Specialist).  
	
	a.  He was advanced to pay grades E-2 and E-3 and he was promoted to specialist four/E-4 on 4 April 1885.

   b.  He was assigned to Germany on 2 August 1983 and served in his MOS with Company E, 10th Engineer Battalion, until 22 January 1985, when he was reassigned to Company E, 4th Engineer Battalion, Fort Carson, Colorado.

3.  Records show the applicant accepted nonjudicial punishment on 29 May 1985 for wrongful use of marijuana; on 20 June 1985 for operating a vehicle while drunk; and on 30 July 1985 for operating a vehicle while drunk, failure to obey a lawful order by driving on post, and unlawfully carrying a concealed weapon. 

4.  On 7 August 1985, the applicant's commander notified him of initiated action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), by a pattern of misconduct.  The applicant was advised of his rights and the separation procedures involved.

5.  On 8 August 1985, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

	a.  He requested representation by consulting legal counsel.

	b.  He elected not to submit a statement in his own behalf.

	c.  He was advised he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.

	d.  The applicant acknowledged he understood that, if he received a less than honorable discharge he could make application to the Army Discharge Review Board or the ABCMR for upgrading; an act of consideration by either board did not imply that his discharge would be upgraded.

6.  On 7 August 1985, the company commander recommended the applicant be discharged for misconduct.
7.  On 13 August 1985, the separation authority waived the rehabilitation transfer requirement and approved the applicant's separation.  The separation authority also directed the applicant be issued a General Discharge Certificate.

8.  The applicant was discharged on 22 August 1985 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct and his service was characterized as under honorable conditions.

	a.  At the time he had completed 2 years, 4 months, and 17 days of net active service this period with 1 year, 5 months, and 25 days of foreign service.

	b.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) shows the Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and Marksman Marksmanship Qualification Badge with Hand Grenade Bar.

9.  There are no official orders or other evidence in the applicant's records that show he was awarded the Army Achievement Medal.

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

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 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, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or is unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

	b.  Chapter 3, paragraph 3-7a, of the current regulation 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 contends his general discharge should be upgraded to an honorable discharge and his DD Form 214 corrected to show he was awarded the Army Achievement Medal.  The applicant states he developed an alcohol and drug problem while in the Army.  He was young at the time, and since he was discharged he has overcome those problems.

2.  There is no available evidence that he was ever awarded he Army Achievement Medal.  

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  The available evidence shows the applicant's record of service is marred by incidents of drunk driving, use of illegal drugs, and carrying a concealed weapon. Therefore, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable discharge. 

5.  The type of discharge directed and the reasons therefore 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 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)                                         AR20100000993



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ABCMR Record of Proceedings (cont)                                         AR20100025632



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