BOARD DATE:	  2 August 2011

		DOCKET NUMBER:  AR20110001559 


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 under other than honorable conditions discharge.

2.  The applicant makes no statement.

3.  The applicant provides no additional documentary 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 for a period of 4 years on
24 August 1987.  He was awarded military occupational specialty 76Y (Unit Supply Specialist).

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on two occasions for:

* on 9 November 1988, failing to drive on a roadway laned for traffic and using excessive speed for road conditions
* between 1 and 9 December 1988, wrongfully using marijuana that was detected by biochemical testing of a urine sample

4.  On 1 February 1989, the applicant's company commander notified him that he was recommending him for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12c, due to commission of a serious offense.  The commander cited the applicant's abuse of illegal drugs as the basis for the recommendation.  The applicant was informed of his rights and that he could receive a general discharge.  

5.  On 4 April 1989, the separation authority approved the chain of command's recommendation to discharge the applicant and directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct based on commission of a serious offense (abuse of illegal drugs) and issued an Under Honorable Conditions Discharge Certificate.  The separation authority suspended the applicant's separation for six months, at which time separation procedures would be remitted, unless otherwise vacated.

6.  The applicant received NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on 15 September 1989.

7.  On 5 October 1989, the suspended separation was cancelled.

8.  The Commanding General, U.S. Army Infantry Center, Fort Benning, GA, issued a memorandum of reprimand to the applicant for driving under the influence (DUI) on 10 June 1990.

9.  On 3 July 1990, the applicant's commander initiated action to discharge him under the provisions of Army Regulation 635-200, paragraph 14-12b, based on misconduct.

	a.  The reasons for the proposed action were the applicant's pattern of misconduct that was prejudicial to good order and discipline, which included his DUI and punishment under Article 15, UCMJ.

	b.  The commander also noted rehabilitative attempts included the applicant's suspended separation action and his enrollment in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

10.  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 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.  He was also advised that as a result of the issuance of a discharge under other than honorable conditions he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he might expect to encounter substantial prejudice in civilian life.

	b.  The applicant elected not to submit statements in his own behalf.

   c.  The applicant voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than under honorable conditions.

	d.  The applicant placed his signature on the document.

11.  On 23 October 1990, the separation authority disapproved the applicant's request for a conditional waiver and directed that a board of officers convene to determine if the applicant should be eliminated from service for misconduct.

12.  On 24 October 1990, the applicant waived consideration by and personal appearance before an administrative separation board regardless of the type of discharge he might receive.

13.  The immediate and intermediate commanders recommended approval of the applicant's separation action under other than honorable conditions.

14.  On 21 November 1990, the separation authority approved the chain of command's recommendation for discharge of the applicant and directed that he be discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct and issued an under other than honorable conditions discharge.

15.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 29 November 1990 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct based on a pattern of misconduct with his service characterized as under other than honorable conditions.  He completed 3 years, 3 months, and 6 days of net active service.

16.  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.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 (one for which a punitive discharge is warranted and authorized), 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.

	b.  Chapter 3, 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.

	c.  Chapter 3, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received NJP for wrongfully using marijuana and he was recommended for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct based on commission of a serious offense (abuse of illegal drugs).  The separation authority suspended the applicant's separation for six months as a rehabilitative measure.

2.  The applicant received NJP for failing to report to his appointed place of duty.  He was subsequently issued a memorandum of reprimand for DUI.  As a result, the applicant was notified by his commander of his intent to recommend his separation for misconduct based on a pattern of misconduct.
   a.  The applicant's request for a conditional waiver was considered and disapproved by the appropriate authority.

   b.  The applicant subsequently waived consideration of his case by an administrative board.

3.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct based on a pattern of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the reasons were appropriate and equitable.

4.  The evidence of record refutes the applicant's contention that his discharge was in error or unjust.

5.  The applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the applicant's overall quality of service was not satisfactory and he is not entitled to an upgraded discharge.

6.  In view of all of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20110001559



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ABCMR Record of Proceedings (cont)                                         AR20110001559



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