IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110004629 


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 under honorable conditions discharge to an honorable discharge.

2.  The applicant states he never worked in his military occupational specialty (MOS) until his last assignment.  He then encountered problems because he could not pass his MOS test.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and two certificates of training.

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 enlisted in the Regular Army on 18 March 1980 and he held MOS 13B (Cannon Crewmember).  He was awarded the Army Service Ribbon, Overseas Service Ribbon, Army Good Conduct Medal (1st Award), Army Achievement Medal, Army Commendation Medal, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar.

3.  On 12 May 1983, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana. 

4.  On 9 January 1985, he received NJP under the provisions of Article 15, UCMJ, for being AWOL, for disobeying a lawful order and for being unable to properly perform his duties due to the overindulgence of alcohol or drugs.

5.  On 13 March 1985, he received NJP under the provisions of Article 15, UCMJ, for disobeying a lawful order.

6.  On 15 May 1985, he received a General Officer Letter of Reprimand (GOMOR) for driving while intoxicated on a military installation.

7.  On 24 May 1985, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14-12b, for misconduct - patterns of misconduct.  The commander stated, it was specifically for his substandard performance, lack of motivation, and his refusal to adhere to the policies and standards of the Army.  

8.  On 24 May 1985, he acknowledged receipt of the notification of his proposed discharge action.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and of the possible effects of an under other than honorable conditions discharge, and a general discharge.  He was also advised of the procedures and rights that were available to him.  He acknowledged he understood if he were issued an under other than honorable conditions discharge he could expect to encounter prejudice in civilian life.

9.  On 28 May 1985, his senior commander recommended that he be separated under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct with the issuance of a general discharge.

10.  On 28 May 1985, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 12-14b for misconduct - pattern of misconduct and directed the issuance of a General Discharge Certificate.  On 17 June 1985, he was discharged accordingly.

11.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct - pattern of misconduct with a general discharge.  He completed 5 years and 3 months of creditable active service. 

12.  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.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, and convictions by civil authorities.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct that a general discharge be issued if such is merited by the Soldier's overall record.

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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the GOMOR he received for driving while intoxicated, in addition to the NJP he received on three occasions for wrongfully using marijuana, disobeying lawful orders, and for being under the influence while on duty.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation therefore were appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct for Army personnel.  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)                                         AR20110004629





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ABCMR Record of Proceedings (cont)                                         AR20110004629



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