IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110007868 


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 honorable with a corresponding separation code.

2.  The applicant states:

* he was convicted of marijuana possession in 1995 while stationed at Fort Sill, OK
* he was a young man when this occurred and he has come a long way since that time
* he completed a substance abuse class and additional classes to help with everyday problems
* he realizes he made a mistake and he paid for it dearly by being separated from the Army

3.  The applicant provides 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 was born on 25 November 1974.  He enlisted in the Regular Army on 20 January 1993 for a period of 2 years and 16 weeks.  He was 18 years of age at the time of his enlistment.  He completed his training and was awarded military occupational specialty 11M (fighting vehicle infantryman).

3.  On 5 October 1994, he was convicted by a general court-martial of conspiring to possess marijuana with intent to distribute and distributing 5 pounds and 11 ounces of marijuana.  He was sentenced to be reduced to E-1 and to be confined for 4 months.

4.  On 25 January 1995, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense.  His unit commander based his recommendation for separation on the applicant's general court-martial conviction.

5.  He consulted with counsel and acknowledged he might encounter substantial prejudice in civilian life if a general discharge were issued.  He further acknowledged that as the result of the issuance of a discharge under other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he might expect to encounter substantial prejudice in civilian life.  He elected not to make a statement in his own behalf.

6.  On 27 January 1995, the separation authority approved the recommendation for separation and directed issuance of a general discharge.

7.  On 10 February 1995, he was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, paragraph 14-12c(1), for misconduct (commission of a serious offense).  He completed 1 year, 9 months, and 27 days of creditable active service with 86 days of lost time.

8.  Item 25 (Separation Authority) of his DD Form 214 shows the entry "Army Regulation 635-200, paragraph 14-12c(1)."  Item 26 (Separation Code) of his DD Form 214 shows the entry "JKF."  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "misconduct."

9.  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.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such were merited by the member's overall record.

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.

12.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  This regulation states the reason for discharge based on separation code "JKF" is "misconduct" and the regulatory authority is Army Regulation 635-200, paragraph 14-12c(1).

DISCUSSION AND CONCLUSIONS:

1.  He contends he was a young man when his drug offenses occurred; however, age is not a sufficiently mitigating factor.  He was 18 years of age when he enlisted and successfully completed training.

2.  He also contends he was convicted of marijuana possession.  The evidence shows he was convicted of conspiring to possess marijuana with intent to distribute and distributing over 5 pounds of marijuana.

3.  His record of service included one general court-martial conviction for marijuana offenses.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an honorable discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns, but he failed to do so.

5.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.  Therefore, there is no basis to amend his separation code.

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 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)                                         AR20110007868



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110007868



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1