IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20110002186 


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, in effect, an upgrade of his general under honorable conditions discharge to fully honorable.

2.  The applicant states:

	a.  He was asked by the battery commander if he wanted to continue his service in the Army and his commander would make his life a living hell, or take an under honorable conditions discharge.  He was 20 years old at the time and his mother (best friend) had died.  He did not need any pressure.  

	b.  He did not fully understand that by taking this type of discharge he would relinquish his benefits.  He was coerced and pressured by his battery commander and he believes he deserved a fully honorable discharge for his excellent and exemplary service.

	c.  Prior to entering the Army, he was in college on a 4-year scholarship but he entered the Army during his third year in college.  He made that choice with dignity and pride.  He even entered the Army as a private first class (PFC)/E-3.

	d.  In summary, he believes the record is unjust.  He was pressured by his commander.  He was taken advantage of as a young Soldier and his honorable service outweighed his mistakes.  He is now a family oriented man and he is fully in need of his military benefits.  

3.  The applicant did not provide any 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 records show he was born on 6 March 1966 and enlisted in the Regular Army for a period of 3 years, at 22 years of age, in the rank/grade of PFC/E-3 on 12 February 1988.  

3.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 16S (Man Portable Air Defense System/Pedestal Mounted Stinger Crewmember).  The highest rank/grade he attained during his military service was PFC/E-3.

4.  The applicant's records show he served in Germany from 14 September 1988 to 11 February 1990.  He was awarded the Army Service Ribbon.

5.  His service record contains an extensive history of negative counseling by members of his chain of command for various infractions, including:

* disrespect and communicating a threat
* failure to repair
* disobeying lawful orders
* failure to report on time
* failure to prepare
* missing formation

6.  On 13 April 1989, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing 4 grams of hashish on or about 18 March 1989.

7.  On 1 November 1989, he again accepted NJP under the provisions of Article 15 of the UCMJ for being disrespectful toward a superior noncommissioned officer on 4 October 1989.
8.  On 21 November 1989, he submitted a urine sample that tested positive for marijuana.

9.  On 7 January 1990, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana.

10.  On 9 January 1990, he underwent a mental status evaluation.  His behavior was fully oriented with a normal thought, good memory, and normal behavior.  He had the mental capacity to understand and participate in proceedings and he was mentally responsible.  The military physician diagnosed him with "repeated drug abuse" and recommended his separation.

11.  On 18 January 1990, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct – commission of a serious offense (abuse of illegal drugs).  Specifically, the immediate commander cited the applicant's two prior instances of drug abuse.  The immediate commander recommended a general discharge.

12.  On 12 January 1990, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel who advised him of the:

* basis for the contemplated separation action for misconduct
* type of discharge he could receive and its effect on further enlistment or reenlistment
* possible effects of this discharge
* procedures and rights that were available to him

He waived consideration of his case by an administrative separation board, waived a personal appearance before an administrative separation board, and elected to not to submit a statement on his own behalf.

13.  He further acknowledged he understood that he could:

* he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him
* he understood 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

14.  Subsequent to this acknowledgement, his immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct – commission of a serious offense – with the issuance of a general under honorable conditions discharge.  The immediate commander stated that no other disposition of the applicant was considered feasible or appropriate because his continued use of illegal drugs indicated he had no desire to rehabilitate himself. 

15.  On 26 January 1990, his intermediate commander recommended approval of the discharge action.  The intermediate commander remarked the applicant had no potential for further military service and rehabilitative efforts would not have produced a quality Soldier or were in the best interests of the Army.

16.  On 29 January 1990, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct – commission of a serious offense – and directed the applicant be furnished a general under honorable conditions discharge.  Accordingly, the applicant was discharged on 12 February 1990.

17.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged on 12 February 1990 under the provisions of chapter 14 of Army Regulation 635-200 with a general under honorable conditions character of service.  This form further confirms he completed a total of 1 year, 9 months, and 23 days of creditable military service.

18.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

19.  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.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.  

20.  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 contends his discharge should be upgraded.

2.  The evidence of record shows the applicant committed a serious offense in that he wrongfully possessed or used illegal drugs on two separate occasions.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was accordingly discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his misconduct.

3.  The evidence of record shows his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, he is not entitled to the requested relief.

4.  The applicant was 22 years of age at the time he enlisted and over 23 years of age at the time of his first drug offense.  However, there is no evidence his repeated drug offenses were a result of his age and there is no indication he was any less mature than other Soldiers of the same age who successfully completed their military service.

5.  Contrary to his contention that his service was exemplary, the evidence of record shows he had an extensive history of negative counseling for various infractions and he received NJP on three separate occasions.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  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)                                         AR20110002186



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ABCMR Record of Proceedings (cont)                                         AR20110002186



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