BOARD DATE: 9 February 2012
DOCKET NUMBER: AR20110015280
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 in the military during the period 1993 to 1995
* Failed a drug test
* Was found not guilty of selling drugs
* Was promoted quickly
* Received a few awards
* Would like to use military benefits
3. The applicant provides a court order granting a name change.
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 applicants 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 applicants 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 September 1993 for a period of 3 years. He completed his training and was awarded military occupational specialty 13B (Cannon Crewmember). He attained the rank of private two/E-2.
3. Between 6 April and 23 September 1994, he was counseled for:
* Failure to repair
* A positive urinalysis for marijuana on 16 June 1994
* Malingering on duty
* Failure to pass the Army Physical Fitness Test (APFT)
4. On 29 July 1994, he tested positive for marijuana.
5. On 1 November 1994, the applicant was notified of his pending separation action under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct (patterns of misconduct). The unit commander based his recommendation for separation on the following:
* The applicant tested positive for drugs twice
* Being disrespectful towards a noncommissioned officer
* Disobeying a lawful order
* He failed an APFT
6. On 2 November 1994, he consulted with counsel, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued, and elected not to submit a statement on his own behalf.
7. On 8 November 1994, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.
8. On 14 November 1994, he was discharged under honorable conditions
(a general discharge) under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (patterns of misconduct). He had served a total of 1 year, 1 month, and 15 days of creditable active service.
9. There is no evidence that 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 (military or civilian 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 members 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 applicants contentions were carefully considered. However, his record of service included adverse counseling statements for various offenses. In addition, he tested positive for marijuana on two separate occasions. As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.
2. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.
3. The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.
4. In view of the foregoing, there is no basis for granting the applicant's requested relief.
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.
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