IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110003862 


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 to an honorable discharge.

2.  He states he was informed that the general discharge would be upgraded to honorable after one year.  He needs the upgrade as he is going back to school and needs to apply for financial assistance.  

3.  He provides no additional 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 military records show he enlisted in the Regular Army on 21 February 1985.  He completed training and he was awarded military occupational specialty 62E (Heavy Construction Equipment Operator).  He served in Hawaii from 5 July 1985 through 14 June 1987.  He was advanced to pay grade E-2 on 1 May 1986.  

3.  He accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for the following:

* 30 September 1985 – wrongful use of some amount of marijuana on or about 29 July 1985
* 4 October 1986 - operate a passenger car while drunk on or about 19 July 1986
* 11 May 1987 – wrongful use of marijuana at some location between 2 February and 3 March 1987

4.  He did not appeal the punishments.

5.  On 14 May 1987, the applicant's unit commander notified him that he was recommending action be taken to separate the applicant from the Army under the provisions of Army Regulation 635-200 (Personnel Separations–Enlisted Separation), paragraph 14-12b, with a general discharge, for misconduct-abuse of illegal drugs.  The company commander stated the basis for the recommendation was the applicant’s two urinalyses which were identified as positive and receipt of Field Grade Article 15s.

6.  On 14 May 1987, the applicant’s unit commander also notified the applicant of the determination to disqualify him for award of the Army Good Conduct Medal.  The rationale for the decision was a chapter 14, misconduct-abuse of illegal drugs, separation.

7.  On 27 May 1987, after consulting with counsel, the applicant acknowledged receipt of the company commander's notification.  He acknowledged he understood he could be issued a general discharge and the results of such a discharge.  He also acknowledged he could apply to the Army Discharge Review Board or the ABCMR for upgrading; however, consideration by either board did not imply that his discharge would be upgraded.  He waived his rights and elected not to submit a statement in his own behalf.

8.  On 28 May 1987, the applicant's company commander recommended separation of the applicant under the provisions of Army Regulation 635-200, paragraph 14-12c with a general discharge.

9.  On 1 June 1987, the applicant's battalion commander recommended approval of the recommendation to separate the applicant pursuant to paragraph 14-12b of Army Regulation 635-200 with the issuance of a General Discharge Certificate.  

10.  On 2 June 1987, the separation authority approved the applicant's separation and directed the issuance of a general discharge.

11.  He was discharged in pay grade E-1 on 16 June 1987, under the provisions of Army Regulation 635-200, paragraph 14-12b, for Misconduct-Drug Abuse, with a general discharge.  He was credited with completing 2 years, 3 months, and 26 days of active service.

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

13.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes 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.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

14.  Army Regulation 635-200, paragraph 3-7a, specified an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was punished under Article 15 for the wrongful use of marijuana and driving while drunk.  On 27 May 1987, he acknowledged that he had consulted with counsel been advised of basis for his separation action and the rights that were available to him.  The separation authority approved his separation action on 2 June 1987.  He was discharged on 16 June 1987, for misconduct-drug abuse.

2.  His contentions have been considered; however, he has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.  The ABCMR does not grant relief solely for the purpose of an applicant qualifying for educational and/or other benefits administered by the Department of Veterans Affairs.

3.  The evidence of record shows he was well aware of the reasons for his discharge at the time he was separated.  A discharge under other than honorable conditions was normally appropriate.  It appears his chain of command considered his overall record when he was issued a general discharge.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge.  

4.  His administrative separation action was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  

5.  He further acknowledged he could apply to the Army Discharge Review Board or the ABCMR for an upgrade of his discharge and that consideration by either board did not imply that his discharge would be upgraded.  Additionally, he is advised that the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge to honorable. 

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)                                         AR20110003862





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ABCMR Record of Proceedings (cont)                                         AR20110003862



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