IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110005804 


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 upgrade of his general discharge to an honorable discharge.

2.  He states that whatever occurred was in the heat of the moment and could have been resolved with something that would not have affected the rest of his life.  

3.  He does not provide any 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 enlisted in the Regular Army on 14 August 1980.  He was promoted to sergeant (SGT)/E5 on 6 October 1983.
3.  On 3 January 1986, he underwent a mental status evaluation and he was determined to be mentally cleared for separation by the examining psychiatrist.  He said the applicant was mentally responsible and had the mental capacity to understand and participate in board proceedings.

4.  On 7 January 1986, nonjudicial punishment was imposed against him under the provisions of Article 15, Uniform Code of Military Justice for the wrongful use of marijuana between 6 October 1985 and 4 November 1985.  

5.  On 28 January 1986, the unit commander notified the applicant of his intent to recommend his separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12a and d for minor disciplinary infractions and as an E5 who was found to abuse drugs.

6.  On 28 January 1986, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation and its effects and the rights available to him, he elected not to submit statements in his behalf.  The applicant acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued.  He further acknowledged that if he received a discharge certificate/character of service which was less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge. However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.

7.  On 7 February 1986, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14.  He directed issuance of a General Discharge Certificate.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 28 February 1986 under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct, with a characterization of service of general under honorable conditions.  He was credited with completing 5 years, 6 months, and 15 days of active service.

9.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  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 abuse of illegal drugs.  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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

11.  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 was separated for minor disciplinary infractions and the abuse of drugs as an E5.  There is no evidence and he has not provided any to show that his discharge was rendered in error or unjustly.

2.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.  

3.  His record of indiscipline does not meet the standards of acceptable conduct and performance of duty 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)                                         AR20110005804





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ABCMR Record of Proceedings (cont)                                         AR20110005804



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