IN THE CASE OF:	  

		BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110010861 


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.  The applicant states he was an outstanding Soldier and made a dumb mistake because he placed himself with the wrong people.  He paid for his mistake and would like to move on.

3.  The applicant provides no additional evidence. 

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 30 October 1991.  He completed training and he was awarded military occupational specialty 63W (Wheel Vehicle Repairer).  The highest rank/grade he held during his period of service was specialist (SPC)/E-4.

3.  On 21 February 1995, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully using marijuana between 9 December 1994 and 9 January 1995.

4.  On 14 March 1995, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph
14-12c, for misconduct – commission of a serious offense.  The commander stated the reason for the action was the applicant testing positive for marijuana on a unit drug urinalysis test.  He recommended the applicant receive a general discharge.

5.  On 14 March 1995, the applicant acknowledged receipt of the notification of his proposed discharge action.  On 15 March 1995, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and of the possible effects of a general discharge.  He was also advised of the procedures and rights that were available to him.  He acknowledged he understood if he were issued a general discharge he could expect to encounter prejudice in civilian life.

6.  On 16 March 1995, his intermediate commander concurred with the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – due to the commission of a serious offense with the issuance of a general discharge.

7.  On 17 March 1995, the separation authority approved the applicant's separation action and directed the issuance of a General Discharge Certificate.  On 30 March 1995, he was discharged accordingly.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct with a general discharge.  He completed 3 years, 5 months, and 1 day of creditable active service.

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.  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.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct that a general discharge be issued if such is merited by the Soldier'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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received for wrongfully using marijuana.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  It appears his chain of command considered his overall record of service when they recommended his separation with a general discharge, although an under other than honorable conditions discharge was normally considered appropriate.  However, based on his overall record, the applicant's service did not meet the standards of acceptable conduct for Army personnel that would warrant an honorable discharge.  Therefore, there is an insufficient evidentiary 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)                                         AR20110010861



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ABCMR Record of Proceedings (cont)                                         AR20110010861



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