BOARD DATE:	  22 September 2011 

		DOCKET NUMBER:  AR20110005809 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states he:

* made a few mistakes while he was in the military
* was young and naïve
* has grown and put the mistakes of his past behind him, but this one indiscretion is hindering him
* has changed and realizes his mistakes
* needs his discharge upgraded to help him qualify for Department of Veterans Affairs (VA) health benefits

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a letter from Chattahoochee Baptist Church
* a Georgia Bureau of Investigation, Georgia Crime Information Center Consent Form
* a letter to his employer from the Director of Training, International Service Leadership Institute Workshop
* Certificate of Appreciation from the New Life Christian Fellowship Assembly

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 6 July 1983.  He completed training and he was awarded military occupational specialty 36C (wire system installer).

3.  The applicant was counseled between 5 February and 10 April 1986 for multiple occasions of failing to show up for work.

4.  On 4 April 1986, the applicant was notified that he was being barred from reenlistment based on a positive urinalysis test that was administered on
21 February 1986.  Records show this was the second time he had tested positive; the first positive result was on 19 April 1985.

5.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 21 April 1986 for using marijuana.

6.  He accepted NJP on 3 July 1986 for two incidents of disobeying a lawful order and failing to go to at the time prescribed to his appointed place of duty.

7.  On 11 June 1986, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct - pattern of misconduct.  He acknowledged receipt of the notification on 12 June 1986.  After consulting with counsel, he waived his rights and elected to have his case considered by a board of officers.

8.  The appropriate authority approved the recommendation for discharge on 1 October 1986 and directed the issuance of an under other than honorable conditions discharge.

9.  On 6 October 1986, the applicant was accordingly discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct - pattern of misconduct.  He completed 3 years, 3 months, and 1 day of creditable active service.

10.  The applicant submits a letter of recommendation from the Senior Pastor of the Chattahoochee Baptist Church who attests to his post-service conduct, diligence and faithfulness to the church, and integrity and commitment to family and friends.  The applicant also submits a Georgia Bureau of Investigation, Georgia Crime Information Center Consent Form authorizing the Loganville Police Department to receive any Georgia criminal history record information.  He submits a letter of congratulations to his employer for his successful completion of the International Service Leadership Institute Workshop and a Certificate of Appreciation from the New Life Christian Fellowship Assembly for being on time to services on a consistent basis.

11.  The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

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.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and 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.

	b.  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’s contentions have been noted and his supporting evidence has been carefully considered.

2.  His post-service conduct and his desire to qualify for VA benefits have been considered.  However, neither is sufficiently mitigating to warrant upgrading his discharge.

3.  His records show he was counseled on numerous occasions and he accepted NJP on two occasions for his acts of misconduct.  He tested positive on two separate urinalysis tests for marijuana.  He was discharged under other than honorable conditions for misconduct and considering the nature of his offenses, the type of discharge he received appropriately reflects his overall record of service.

4.  In view of the foregoing, there is no basis for upgrading his under other than honorable conditions discharge to either an honorable or a general 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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20110005809



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