IN THE CASE OF:	  

		BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20110000626 


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 upgrade of his general discharge to an honorable discharge.

2.  He states:

* he would like to get an upgrade for having been clean [from drugs]
* he completed inpatient treatment in 2002 and he has not used drugs since then
* he supports his three little boys and he’s trying to better his life for his family 

3.  He provides no additional documents.  

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 22 July 1994 for a period of
4 years.  He completed training and he was awarded military occupational specialty 12F (engineer track vehicle crewman)

3.  His discharge packet is not available or review; however, his service record contains a copy of his Army Discharge Review Board (ADRB), OSA Form 172 (Case Report and Directive) which shows:

	a.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on two occasions for wrongfully using marijuana on 8 August 1995 and for being absent without leave (AWOL) from 25 April to 17 May 1995.

   b.  On 9 February 1996, the unit commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c(2), for misconduct (commission of a serious offense - abuse of illegal drugs).  

	c.  The reasons for the proposed action were for wrongfully using marijuana and being AWOL.  He was advised of his rights. 

	d.  The applicant consulted with legal counsel, he was advised of the impact of the discharge action, and he indicated he submitted a statement in his own behalf, which is not in the available record.

	e.  He was also entitled to have his case heard by an administrative separation board, which he voluntarily waived contingent upon receiving a characterization of service or description of service no less favorable than a general under honorable conditions.  

	f.  On 22 March 1996, he voluntarily withdrew his conditional waiver and he agreed to waive his right to an administrative board.

	g.  On 26 March 1996, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of under other than honorable conditions.  


4.  The applicant was discharged on 9 April 1996 under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct - commission of a serious offense (abuse of illegal drugs)) with service characterized as under other than honorable conditions.  He completed 1 year, 7 months, and 24 days of creditable active service with 22 days of time lost.

5.  The ADRB carefully examined the applicant's record of service during the period of enlistment under review.  There was a full consideration of all faithful and honorable service as well as the infractions of discipline, the extent thereof, and the seriousness of the offenses.  The ADRB did not condone the applicant's misconduct; however, it determined that the characterization of his service was inequitable.  The ADRB found the applicant's misconduct was partially mitigated by the nature of the offenses and the applicant's post-service accomplishments.  Therefore, on 3 December 2004, the ADRB upgraded the applicant’s under other than honorable conditions discharge to a general discharge.  The ADRB further determined that the reason for his discharge was proper and equitable and voted not to change it.

6.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  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 was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  

7.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s statement regarding his post-service service conduct is acknowledged.  However, it is not sufficiently mitigating to warrant relief in this case.

2.  The evidence of record shows he received two Article 15s for wrongfully using marijuana and for being AWOL for 22 days.
3.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable discharge.

4.  Although the ADRB upgraded his character of service to general, under honorable conditions, the ADRB also found that the reason for his discharge was proper and equitable and voted not to change it.  There appears to be no basis for further upgrading his character of service to fully honorable.  

5.  Considering the seriousness of the applicant's offense, it appears that his service was appropriately characterized.

6.  The applicant has not presented sufficient evidence which warrants changing his general discharge to a fully honorable discharge.

7.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20110000626



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ABCMR Record of Proceedings (cont)                                         AR20110000626



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