BOARD DATE:	  20 October 2011

		DOCKET NUMBER:  AR20110008678 


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 he/his:

* was discharged from the U.S. Army on 17 October 1991 under paragraph 14-12c of Army Regulation 635-200 (Personnel Separations)
* did not receive any legal representation and recently discovered that he should have had a lawyer
* general discharge was not processed in accordance with the regulation

3.  He provides a self-authored statement, his General Discharge Certificate, and 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 2 May 1990 for a period of 
2 years and 20 weeks.  

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongfully possessing some amount of marijuana in the hashish form on or about 26 June 1991.  He acknowledged that he had been afforded the opportunity to consult with counsel, he did not demand trial by court-martial, he requested an open hearing in the Article 15 proceedings, and he elected to present matters in his defense in person.  

4.  On 8 October 1991, the unit commander notified him of pending separation actions under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense.  He was advised of his rights.  

5.  He acknowledged receipt of separation notification.  He consulted with legal counsel and was advised of the basis for the proposed separation action for commission of a serious offense under the provisions of Army Regulation, paragraph 14-12c.  He was informed of the effects of this separation action and he acknowledged that he might encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He did not submit statements in his own behalf.

6.  On 9 October 1991, the separation authority approved the recommendation for separation under the provisions of Army Regulation 635-200, paragraph 
14-12c for misconduct - commission of a serious offense with the issuance of a General Discharge Certificate.   

7.  On 17 October 1991, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  He had completed 1 year, 5 months, and 16 days total active military service.

8.  He provided a self-authored statement in which he gave a brief history of his military service and the incidents which led to his discharge.  In summary, he stated he:


* was taken to the U.S. Army Criminal Investigation Command’s office in Germany by his noncommissioned officer and was told he was being formally charged with possession of an illegal drug
* admitted that the cigarette pack with the remnants of hashish belonged to him
* declined a deal to work undercover to assist in the apprehension of suspected drug dealers in exchange for being discharged honorably
* was given an Article 15, reduced from E-3 to E-1, and discharged under honorable conditions
* was not offered legal counsel or a formal court-martial hearing
* was informed he had 3 years to pursue an upgrade of his discharge to fully honorable
* currently pays taxes, is a law-abiding citizen, and has changed for the better

9.  His service record does not indicate he 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 set forth the basic authority for the separation of enlisted personnel.  Chapter 14 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, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  Although the applicant contends he did not receive any legal representation, the evidence of record shows he consulted legal counsel during the chapter 14 


proceedings and he was advised of the effects of a general discharge.  He was also afforded the opportunity to submit statements in his own behalf, but he declined.  

2.  The applicant also contends he was not offered a formal court-martial hearing.  However, he was administratively separated from the military under the provisions of Army Regulation 635-200, chapter 14 for misconduct (commission of a serious offense).  Therefore, he would not have been offered a formal trial by court-martial.  

3.  The evidence of record shows he received nonjudicial punishment under Article 15 for wrongful possession of some amount of marijuana in the hashish form.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

5.  An under other than honorable conditions discharge was normally appropriate for a Soldier discharged under chapter 14 of Army Regulation 635-200 for misconduct.  It appears the separation authority determined that the applicant's overall record of service did not meet the standards of acceptable conduct and performance of duty to warrant a fully honorable discharge and the applicant has not presented sufficient evidence which warrants changing his general discharge to a fully honorable discharge.

6.  The applicant’s contentions regarding his post-service conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a 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)                                         AR20110008678



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ABCMR Record of Proceedings (cont)                                         AR20110008678



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