IN THE CASE OF:	  

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20100029225 


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 an honorable discharge.

2.  The applicant states he was not given a reasonable amount of time to recover from his addiction prior to discharge.  He further states that he has been rehabilitated for over 17 years.

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's record shows he enlisted in the Regular Army on            31 July 1984.  His records show he completed one station unit training and he was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  Records show the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions for the offenses indicated:

   a.  on 14 March 1986, for wrongful use of marijuana;

   b.  on 7 July 1986, for wrongful use of marijuana; and

   c.  on 5 August 1986, for liquor intoxication/incapacitation in the performance of duty.

4.  The applicant received a Bar to Reenlistment Certificate on 7 July 1986.

5.  On 18 September 1986, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14 by reason of misconduct-drug abuse.  

6.  On 18 September 1986, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.  

7.  On 27 October 1986, the separation authority waived further rehabilitative efforts and approved the applicant's discharge under Army Regulation 635-200, chapter 14 and directed that the applicant be separated with an under conditions other than honorable discharge.

8.  On 4 November 1986, the applicant was discharged accordingly.  The         DD Form 214 he was issued confirms he was separated for misconduct-drug abuse.  He completed 2 years, 3 months, and 4 days of creditable active military service at the time of discharge.

9.  The applicant previously applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge.  On 6 August 1986, he was notified his request to change the character of his discharge was approved and the characterization of discharge was changed to general, under honorable conditions.  Additionally, the reason for discharge was changed from  misconduct-drug abuse to misconduct. 

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

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 that his discharge be upgraded was carefully considered; however, there is insufficient evidence to support this request.    

2.  The evidence of record shows the applicant received three instances of    nonjudicial punishment and a bar to reenlistment.  These offenses are acts of misconduct which warrant a less than fully honorable discharge.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  Although noteworthy, post-service conduct alone is not a basis for upgrading a discharge.  

5.  Based on his record of indiscipline, the applicant's 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.







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)                                         AR20100029225



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100029225



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1