IN THE CASE OF:

		BOARD DATE:  15 September 2011

		DOCKET NUMBER:  AR20110005275


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 under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states his past mistakes have motivated him to be a better person.  Since he was separated from the military he has tried to do the right thing and he has taught his children to do the same.  He is humbly requesting upgrade of his discharge.

3.  The applicant provides a copy of his 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.  The applicant enlisted in the Regular Army on 12 September 1985.  He completed training and was awarded military occupational specialty 82C (Field Artillery Surveyor).

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

   a.  item 5 (Oversea Service) he served in U.S. Army Europe (Germany) from 17 February 1986 through 25 February 1988; and

   b.  item 9 (Awards, Decorations and Campaigns) the Army Service Ribbon, Army Achievement Medal, Oversea Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Grenade Bar.

4.  The applicant accepted nonjudicial punishment (NJP) for the wrongful use of marijuana on 7 August 1986, 28 May 1987, and 20 May 1988.

5.  On 18 August 1988, the applicant's unit commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12c for serious misconduct based on his multiple drug offenses.  The applicant was advised of his rights and of the separation procedures involved.
 
6.  The applicant consulted with counsel.  He acknowledged his rights and elected to not submit a statement in his own behalf.  

7.  The immediate and intermediate commanders recommended approval of the separation action. 

8.  The appropriate authority approved the recommendation and directed discharge under other than honorable conditions.  The applicant was separated 11 October 1988.  He had completed 3 years and 26 days of creditable active duty service.

9.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year period of eligibility.

10.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge was authorized for offenses under Article 112a for wrongful use of illegal drugs.

11.  Army Regulation 635-200, in effect at the time, 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 for 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.  At the time, paragraph 14-12 (Abuse of Illegal Drugs) provides that second-time drug offenders in pay grades E1-E9 must be processed for separation.

	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.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his discharge be upgraded to honorable.  His past mistakes have motivated him to be a better person.  Since he was separated from the military he has tried to do the right thing and he has taught his children the same.  He is humbly requesting upgrade of his discharge.

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




3.  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)                                         AR20110005275



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1