IN THE CASE OF:	  

		BOARD DATE:	  10 January 2012

		DOCKET NUMBER:  AR20110013095 


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 discharge under honorable conditions to a fully honorable discharge.

2.  The applicant states the military failed to rehabilitate him.

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 for 4 years on 26 January 1973.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was assigned to Fort Lewis, WA, for duty.

3.  His records reveal an extensive history of negative counseling by members of his chain of command for various infractions, including:

* unacceptable uniform and/or appearance
* poor attitude and performance
* lateness to work and missing formation
* civilian arrest, conviction, and probation imposed by the court
* loss of security clearance
* multiple instances of drug use/abuse
* lack of motivation or desire to remain in the Army

4.  On 8 January 1974, he was arrested by civil authorities for the civilian offense of burglary.  He received a suspended sentence for 3 years.

5.  On 26 May 1974, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing marijuana.

6.  He was enrolled in the Fort Lewis Drug and Alcohol Rehabilitation Halfway House for drug treatment and recovery and he successfully completed this program.

7.  On 6 August 1974, he again accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully possessing marijuana.

8.  On 13 August 1974, the applicant's immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to unfitness.  The immediate commander requested a waiver of any further requirements for counseling or rehabilitative transfer because prior attempts had failed.  Specifically, the immediate commander cited the applicant's:

* extensive history of negative counseling
* continuous drug use/abuse
* failure of any and all rehabilitative efforts

9.  On 23 August 1974, the applicant's immediate commander also initiated a Bar to Reenlistment Certificate against the applicant citing his habitual drug use.  The applicant was provided with a copy of this bar, but he elected not to submit a statement on his own behalf.  The bar was ultimately approved by the appropriate authority.

10.  On 13 September 1974, the applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action to separate him for unfitness.  The applicant also requested consideration of his case by a board of officers and a personal appearance before a board of officers.  He further elected not to submit a statement on his own behalf.  He acknowledged that:

* he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* he understood that in the event of the issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he may encounter substantial prejudice in civilian life

11.  On 9 January 1975, a board of officers convened at Fort Lewis with the applicant and his appointed counsel present.  The board found the applicant's further retention in the Army was undesirable because of his drug abuse.  The board further recommended his discharge for unfitness with the issuance of a General Discharge Certificate.

12.  On 19 February 1975, the convening/separation authority approved the board's findings and recommendations and ordered the issuance of an Undesirable Discharge Certificate.  The applicant was discharged accordingly on 28 February 1975.

13.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with a General Discharge Certificate.  He completed 2 years, 1 month, and 5 days of creditable active military service.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

15.  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 applicant's records reveal an extensive history of misconduct that included two instances of NJP, a civilian arrest, a bar to reenlistment, and negative counseling for misconduct.  He was provided counseling and/or multiple opportunities for rehabilitation by various members of his chain of command, but he failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.

2.  The evidence of record shows his separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with applicable law and regulations at the time and the character of his service is commensurate with his overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.

3.  Contrary to his contention that the military failed to rehabilitate him, the evidence of record shows he was counseled on multiple occasions by his chain of command and underwent multiple rehabilitative efforts, but he failed to become an effective Soldier.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty 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 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)                                         AR20110013095



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ABCMR Record of Proceedings (cont)                                         AR20110013095



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