IN THE CASE OF:	  

		BOARD DATE:	    9 August 2011

		DOCKET NUMBER:  AR20110001872 


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 an honorable discharge based on a review of his records.

2.  The applicant states he was young, the people he hung with were bad, and he made a bad decision along the way.

   a.  He states he served on two hardship tours.

   b.  He held a job for more than 22 years, but was recently laid off from work.

   c.  Upgrade of his discharge will allow him the opportunity to utilize veteran education benefits to attend school and obtain a commercial driver's license.

3.  The applicant provides copies of his enlistment contract, personnel qualification record, an award order, two records of proceedings under Article 15, his separation orders, and DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  A DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows the applicant enlisted in the Regular Army for a period of 3 years on 22 January 1982.  At the time, he was 19 years of age.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

	a.  item 5 (Oversea Service) he served in Korea for 12 months from 31 May 1982 through 27 May 1983;

   b.  item 6 (Military Occupational Specialties [MOS]) he was awarded MOS 11B1O (Infantryman) on 29 April 1982;

   c.  item 9 (Awards, Decorations and Campaigns) the Expert Marksmanship Qualification Badge with Rifle (M-16) and Hand Grenade Bars, Army Service Ribbon, and Overseas Service Ribbon;

   d.  item 17 (Civilian Education and Military Schools) he completed the
13-week Infantryman course; and

   e.  item 18 (Appointments and Reductions) the highest grade he attained was specialist four (SP4)/pay grade E-4 on 1 December 1983.

4.  Headquarters, 2nd Infantry Division [Korea], Permanent Orders 9-15, dated
2 June 1983, awarded the applicant the Army Achievement Medal for meritorious achievement for the period 30 May 1982 to 27 May 1983.

5.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), as follows:

   a.  on 18 May 1984, for wrongfully using some amount of marijuana between 1 and 31 December 1983; wrongfully possessing some amount of marijuana between 1 and 31 December 1983; wrongfully using some amount of amphetamines between 1 December 1983 and 31 January 1984; and wrongfully having in his possession some amount of amphetamines between 1 December 1983 and 31 January 1984.  His punishment consisted of reduction to E-3 

(suspended for 180 days), forfeiture of $250.00 pay per month for 2 months
(1 month suspended for 180 days), and 30 days of extra duty; and

   b.  on 10 October 1984, for wrongfully using a controlled substance (marijuana) on a military installation on 30 August 1984.  His punishment consisted of reduction to private (PV1)/pay grade E-1.

6.  The applicant's military personnel records do not contain a copy of his administrative separation packet.

7.  Headquarters, National Training Center and Fort Irwin, California, Orders 
209-1, dated 23 October 1984, promulgated the applicant's discharge from the Regular Army, effective 31 October 1984.

8.  The applicant's DD Form 214 shows he was discharged on 31 October 1984 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12b, based on a pattern of misconduct with his service characterized as under honorable conditions.  He completed 2 years, 9 months, and 10 days of net active service.

9.  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.

10.  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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

	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.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge should be upgraded to fully honorable because he was young, the people he hung with were bad, and he made a bad decision; however, his overall record of service supports an upgrade of his discharge.

2.  Considering the applicant satisfactorily completed training, was awarded MOS 11B, and served from January 1982 through November 1983 without committing a known offense or getting into any trouble, his contention that he was young or immature is not supported by the evidence of record.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

3.  Absent evidence to the contrary, it is presumed that the applicant's separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct based on a pattern of misconduct was warranted by the infractions/offenses he committed.  It is also presumed the applicant's discharge was administratively correct, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Thus, it is concluded that the applicant was properly discharged for misconduct based on a pattern of misconduct and that he was equitably discharged with a character of service of under honorable conditions.

4.  The applicant's military service records show the highest grade he attained was SP4 (E-4) and that he was awarded the Army Achievement Medal.  However, his records also show he received NJP on two separate occasions, both of which involved the wrongful possession or use of drugs; he was reduced to PV1 (E-1); and he failed to complete his 3-year active duty obligation.  Thus, 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.

5.  The applicant's post-service employment was considered; however, it is not sufficiently mitigating to warrant relief.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veteran's benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for benefits should be addressed to the Department of Veterans Affairs.

7.  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)                                         AR20110001872



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ABCMR Record of Proceedings (cont)                                         AR20110001872



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