IN THE CASE OF:	

		BOARD DATE:	  10 November 2011

		DOCKET NUMBER:  AR20110010353 


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 general discharge be upgraded to honorable.

2.  The applicant states:

* he was a good Soldier but made a mistake
* he was told his discharge would be upgraded to honorable in 6 months

3.  The applicant provides:

* one character reference letter
* award certificate for the Army Achievement Medal
* Certificate of achievement
* numerous forms of identification
* Certificate of training
* Certificate of high school equivalence
* Airborne Course diploma
* General Discharge Certificate

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 20 November 1985 for a period of 4 years.  He completed training and was awarded military occupational specialty 62B (construction equipment mechanic).  He attained the rank of specialist four.

3.  On 13 June 1986, nonjudicial punishment (NJP) was imposed against the applicant for being drunk and disorderly.

4.  On 13 June 1988, NJP was imposed against the applicant for using marijuana.

5.  On 4 August 1988, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph
14-12c, for misconduct (commission of a serious offense).  The unit commander cited his marijuana use as the basis for this action.

6.  On 4 August 1988, he consulted with counsel and acknowledged that he might encounter substantial prejudice in civilian life if he was issued a general discharge.  He also elected not to submit a statement on his own behalf.  

7.  On 8 August 1988, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

8.  He was discharged under honorable conditions on 23 August 1988 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (abuse of illegal drugs).  He completed a total of 2 years, 9 months, and 4 days of creditable active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received the Army Service Ribbon, Parachutist Badge, Drivers Mechanic Badge, Army Achievement Medal, Marksman Marksmanship Qualification Badge with Rifle Bar, and Expert Marksmanship Qualification Badge with Grenade Bar. 




9.  He provided a character reference letter from a dispatcher of the International Union of Operating Engineers in Houston, TX.  She attests:

* he is honest, dependable, and trustworthy
* he has established a good reputation with his co-workers and contractors
* he has never been removed from employment for disciplinary reasons 

10.  On 31 August 1995, the Army Discharge Review Board denied his request for an honorable discharge.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  The regulation states that abuse of illegal drugs is serious misconduct.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

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.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  He contends he was told his discharge would be upgraded in 6 months.  However, a discharge upgrade is not automatic.

2.  The character reference letter submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.





3.  His entire record of service, awards, and accomplishments were carefully considered.  However, his record of service also included two NJPs.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is insufficient evidence to warrant an honorable discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110010353



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ABCMR Record of Proceedings (cont)                                         AR20110010353



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