IN THE CASE OF:	  

		BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110010288 


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 an honorable or general discharge.

2.  The applicant states he was young and irresponsible and accepts responsibility for his actions.  He has acquired a wide-range of knowledge and experience with the hopes of preventing others from making the same mistakes.

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 was born on 10 December 1959 and he enlisted in the Regular Army on 22 August 1978 at age 18.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 32H (Fixed Station Radio Repairer).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.  However, he held the rank/grade of private (PVT)/E-1 at the time of separation.

3.  The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on two occasions for the offenses indicated:

	a.  on 19 May 1981, for being absent without leave from 2 through 4 February 1981; and

	b.  on 19 March 1982, for failing to obey a lawful order.

4.  The applicant’s record contains AOC-L Form 153 (Judgment and Commitment), State of North Carolina, dated 13 August 1981, which shows he pled and was found guilty of felonious possession with intent to sell and deliver marijuana and misdemeanor possession of cocaine in a civilian court.  

5.  On 16 September 1981, the applicant was notified of initiation of separation action for his arrest and conviction for wrongful possession of controlled substances under the provisions of Army Regulation 635-200 (Personnel Separations), section III, chapter 14.  

6.  The applicant received a Bar to Reenlistment Certificate on 12 January 1982.

7.  An Administrative Separation Board was convened on 9 May 1982 and found the applicant undesirable for further retention in the military due to his civilian conviction.  The board recommended the applicant be issued a discharge certificate under conditions other than honorable.

8.  On 7 July 1982, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, and directed issuance of a discharge under other than honorable conditions.

9.  On 16 August 1982, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was separated for misconduct, conviction by civil court.  He completed a total of 3 years, 9 months, and 13 days of creditable active military service during this period with 73 days time lost.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  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 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.  

12.  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.

13.  Army Regulation 635-200, 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 request that his discharge be upgraded was carefully considered and determined to be without merit.

2.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  In the absence of evidence to the contrary it is presumed all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.
 
3.  The applicant's record includes evidence which shows he received nonjudicial  punishment on two occasions, a Bar to Reenlistment Certificate, and was found guilty of felonious possession with intent to sell and deliver marijuana in addition to misdemeanor possession of cocaine.

4.  Based on his record of indiscipline, the applicant's service did not meet the standard of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to 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)                                         AR20110010288



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ABCMR Record of Proceedings (cont)                                         AR20110010288



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