IN THE CASE OF:	

		BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110011933 


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, under honorable conditions discharge to an honorable discharge.

2.  The applicant states:

	a.  He is requesting an upgrade based on the fact that his discharge was based on one incident.  During a 2-month period he was randomly selected for urinalysis testing 3 times and only tested positive once.  He had gotten married 1 year prior and had their first baby.  One month prior, his wife tested positive for cancer.  He has spent the last 23 years deeply regretting his actions.  When he was in the Army, he was promoted to sergeant in 2 and 1/2 years and received several good evaluations.  

	b.  In the past 23 years in the civilian workplace, he has never failed a drug test for either a screening requirement for employment or a random drug test.  This included over 8 years of random testing as a bus driver.  He is currently unemployed and strongly believes his current discharge status has been detrimental in finding employment.  He has paid heavily for his one-time indiscretion and an upgrade would restore his pride in what was otherwise a positive tenure as a Soldier in the U.S. Army.  This would also afford him the opportunity to compete for future employment on equal terms with his peers.

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's records show he enlisted in the Regular Army on 27 March 1984 and he held military occupational specialty 52D (Power Generator Equipment Repairer).  He was awarded the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), Army Achievement Medal (1st Oak Leaf Cluster), Army Good Conduct Medal (1st Award), and the Overseas Service Ribbon.  

3.  Between June 1987 and January 1988, he was frequently counseled by several members of his chain of command for conduct unbecoming a noncommissioned officer (NCO), repeatedly failing to be at his assigned place of duty, and for being absent without leave (AWOL).

4.  On 2 February 1988, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully using marijuana. 

5.  On 9 February 1988, 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 - abuse of illegal drugs.  The commander stated he was recommending him for an under other than honorable conditions discharge.

6.  On 9 February 1988, he acknowledged receipt of the notification of his proposed discharge action.  On 19 February 1988, 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 an under other than honorable conditions discharge and 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 an under other than honorable conditions discharge he could expect to encounter considerable prejudice in civilian life.

7.  In a statement he submitted in his own behalf, the applicant stated he felt that based on his overall record, he deserved an honorable discharge.  He also stated he had been recently married and had to deal with the serious illness of his spouse in addition to caring for his daughter and stepson.  He admitted he made a mistake, but asked that his discharge be based on the totality of his Army record and not just one incident.

8.  On 18 February 1988, his immediate commander recommended that he be barred from reenlistment.  The commander cited the applicant’s NJP for wrongfully using marijuana and the frequent counseling the applicant received for conduct unbecoming an NCO, repeatedly failing to be at his assigned place of duty, and for being AWOL.  On 23 February 1988, the bar to reenlistment was approved by the chain of command and placed in his records.

9.  On 25 February 1988, his immediate commander recommended that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct with the issuance of an under other than honorable conditions discharge.  The commander cited the applicant's failure to respond to formal counselings and his NJP for wrongfully using marijuana.

10.  On 1 March 1988, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 12-14c, for misconduct and directed the issuance of a General Discharge Certificate.  On 7 March 1988, he was discharged accordingly.

11.  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 - abuse of illegal drugs with a general discharge.  He completed 3 years, 11 months, and 11 days of creditable active service.

12.  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.

13.  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, abuse of illegal drugs, 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.

14.  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 counseling he received for conduct unbecoming an NCO, repeatedly failing to be at his assigned place of duty, for being AWOL, and 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.  The type of discharge directed and the reason for separation therefore were appropriate considering all the facts of the case.  

3.  It appears the separation authority took into consideration his complete record of service when he directed the applicant be discharged with an under honorable conditions characterization of service vice under other than honorable conditions as recommended by his immediate commander.

4.  The ABCMR does not grant requests for the correction of records solely for the purpose of making the applicant eligible for employment or other benefits.  Every case is individually decided based upon its merits when an applicant requests a correction to his military records.

5.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an honorable 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)                                         AR20110011933





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ABCMR Record of Proceedings (cont)                                         AR20110011933



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