IN THE CASE OF:	  

		BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20110003529 


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 his general under honorable conditions discharge be upgraded to honorable.

2.  The applicant states he has suffered the disgrace of his discharge for 
20 years.  He humbly begs that it be expunged so that he may pursue employment without shame or discrimination.  He would like to be able to proudly hang his discharge on the wall instead of shamefully hiding it in a box.  He further states that he has been a model citizen, is married, and has three children.  His discharge is the result of his foolish youth when he made errors in judgment.

3.  The applicant provides a copy of his DD Form 214 (Certificate or 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.  On 23 February 1988, the applicant, at almost 20 years of age, enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).

3.  On 10 June 1988, the applicant was assigned for duty as an indirect fire infantryman with the 1st Battalion, 14th Infantry Regiment, located at Schofield Barracks, Hawaii.

4.  On 1 March 1989, the applicant was advanced to specialist, pay grade E-4.

5.  The applicant accepted the following nonjudicial punishments:

	a.  9 January 1990: wrongful use of marijuana; and

	b.  12 February 1990: breaking restriction.

6.  In a memorandum dated 12 January 1990, a medical consultant and the Clinical Director for the Alcohol and Drug Abuse Prevention and Control Program diagnosed the applicant as being dependent on cannabis and alcohol.  They recommended that the applicant be separated from the military service.

7.  On 20 February 1990, the applicant's company commander notified him that he was intending to take action to discharge him for the commission of a serious offense based on his being medically diagnosed as drug (cannabis and alcohol) dependent.  The commander informed him that he could receive either an honorable or a general characterization of service.

8.  The applicant consulted with counsel concerning his rights.  He indicated that he would submit a statement, but it is not in the available records.  He understood that he could expect to encounter extreme prejudice in civilian life as a result of a general discharge.

9.  On 28 February 1990, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, due to the commission of a serious offense - illegal drug use.  He stated that the applicant was medically diagnosed as dependent on cannabis and alcohol.  His continued use of drugs could not and would not be tolerated.  The available documentation indicates the commander's comments and/or request for a rehabilitative transfer was in Tab B of the separation package, but it is no longer available for review.
10.  On 7 March 1990, the appropriate authority approved the recommendation for waiver of rehabilitative transfer and discharge.  He directed that the applicant be issued a discharge under honorable conditions.  Accordingly, on 13 April 1990, the applicant was discharged under honorable conditions.  He had completed 2 years, 1 month, and 21 days of creditable active duty service.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  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.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  Specific categories include the commission of a serious offense.  Misconduct is considered a commission of a serious military or civil offense when the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice (UCMJ).
  
13.  Under the UCMJ, the maximum punishment allowed for wrongful use of marijuana is a punitive discharge and confinement for 2 years.

14.  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 contends that his general under honorable conditions discharge should be upgraded because he was foolish in his youth and has since been a model citizen with a wife and three children.  He implies that 20 years is long enough to endure the embarrassment of his actions as a foolish youth.



2.  The record shows the applicant accepted NJP for wrongful use of marijuana.  The UCMJ authorizes up to a 2-year period of confinement and a punitive discharge for the illegal use of marijuana.  The commander's decision to administratively discharge him resulted in a far lesser punishment and was not unjust or too harsh.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The applicant's contention that he was young and foolish at the time is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was more than 20 years of age, had satisfactory completed training and had attained the rank of specialist, pay grade E-4, before any negative incidents are documented.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

6.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20110003529





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ABCMR Record of Proceedings (cont)                                         AR20110003529



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