IN THE CASE OF:	  

		BOARD DATE:  17 January 2012

		DOCKET NUMBER:  AR20110014337 


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 under other than honorable conditions discharge to a general or honorable discharge.

2.  The applicant makes no statement.

3.  The applicant provides 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 enlisted in the Regular Army on 28 August 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty 91A (Medical Specialist).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.  However, he held the rank/grade of private/E-1 at the time of separation.

3.  On 24 August 1987, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for the wrongful use of marijuana on or about 28 June 1987.  His punishment was a forfeiture of $178.00 pay suspended if not vacated before 23 February 1988.

4.  On 24 November 1987, the unexecuted portion of the punishment imposed on 24 August 1987 was vacated based on the applicant’s absence from his place of duty on or about 13 November 1987.

5.  On 22 January 1988, the applicant was notified of the initiation of separation action against him for a pattern of misconduct under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b, chapter 14.  

6.  On 26 April 1988, an Administrative Separation Board convened and found the applicant undesirable for further retention in the military due to serious misconduct and rehabilitation was deemed not possible.  The board recommended the issuance of an under other than honorable conditions discharge.

7.  On 12 May 1988, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of a discharge under other than honorable conditions.

8.  On 17 May 1988, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was separated for misconduct, pattern of misconduct.  He completed a total of 8 years, 8 months, and 20 days of creditable active military service during this period with no time lost.

9.  The applicant applied to the Army Discharge Review Board for upgrade of his discharge.  On 27 February 1989, he was notified he was properly and equitably discharged and his request to change the character of his discharge was denied.

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.  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.  
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.

12.  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 available evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.
 
3.  The applicant's record includes evidence which shows he received nonjudicial punishment for wrongful use of marijuana and for failing to be at his appointed place of duty.

4.  Based on this 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)                                         AR20110014337



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ABCMR Record of Proceedings (cont)                                         AR20110014337



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