BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20110000338 


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 under honorable conditions to honorable.

2.  He states:

* he was a young man and made one bad choice in 5 years
* he reenlisted for 3 more years and served his country honorably
* he made rank early and went to all available schools
* he received seven medals and ribbons
* he was set up and he was one of the best Soldiers in the military

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 was born on 3 July 1957 and he enlisted in the Regular Army on 28 August 1979 at 22 years of age.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 64C (Motor Transport Operator).  He also completed the German Headstart Program.  He was promoted to specialist four on 23 April 1981.

3.  He was discharged on 27 June 1982 for immediate reenlistment.  On 28 June 1982, he reenlisted for a period of 3 years.

4.  He was promoted to specialist five on 1 August 1983.

5.  A review of his service record revealed derogatory information which shows:

* he tested positive for cocaine on 5 October 1984
* he was apprehended by military police for driving while intoxicated on 2 December 1984
* he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for knowingly and wrongfully using some amount of cocaine and operating a motor vehicle while drunk

6.  He completed the Primary Leadership Development Course in 1984.

7.  On 14 December 1984, the unit commander notified him of the proposed recommendation to discharge him under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for acts or patterns of misconduct.  He was advised of his rights.

8.  He acknowledged notification of the separation action, consulted with legal counsel, requested consideration of his case by a board of officers, requested a personal appearance before a board of officers, and did not submit statements in his own behalf.

9.  On 22 January 1985, the separation authority directed that the case be referred to a board of officers to determine if the applicant should be separated from the military service for misconduct – commission of a serious offense – under the provisions of Army Regulation 635-200, chapter 14, section III, paragraph 14-12c.

10.  A board of officers met on 21 February 1985 and recommended the applicant be discharged from the military service due to misconduct under the provisions of Army Regulation 635-200, chapter 14, with a general discharge.

11.  The separation authority approved the findings and recommendations of the board to discharge the applicant from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense – with the issuance of a General Discharge Certificate.

12.  He was discharged on 3 April 1985 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He completed 2 years, 9 months, and 6 days of active military service during the period under review and 5 years, 7 months, and 6 days of total active military service.

13.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded the Army Service Ribbon, Army Commendation Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), Army Good Conduct Medal, Driver and Mechanic Badge, Overseas Service Ribbon, and Noncommissioned Officer Professional Development Ribbon.

14.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  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.  

16.  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 contention that he was a young man and made one bad choice in 5 years is acknowledged.  However, his age is not sufficiently mitigating to warrant relief in this case.

2.  The applicant completed prior honorable service.  However, his service record shows he received an Article 15 for wrongful use of cocaine and driving while intoxicated during the period under review.  Therefore, his prior honorable service is not sufficient to mitigate his misconduct.

3.  His service record is void of evidence and he has not provided any evidence which supports his contention that he was set up.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

5.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of a fully honorable discharge and characterized his service as under honorable conditions (general).  He has not presented sufficient evidence which warrants changing his general discharge under honorable conditions to fully honorable.

6.  His service record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting his request.

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)                                         AR20110000338



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ABCMR Record of Proceedings (cont)                                         AR20110000338



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