IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110016458 


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 that his discharge was inequitable because it was based on one isolated incident in over 50 months of service.  He would like to be allowed the dignity of an honorable discharge.

3.  He provides two copies of 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’s military record shows he enlisted in the Regular Army (RA), in pay grade E-3, on 6 December 1983.  He completed training and was awarded military occupational specialty 02F (Tuba Player).  

3.  On 5 June 1984, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully possessing some amount of marijuana on or about 23 May 1984.  

4.  He was promoted to pay grade E-3 on 1 November 1984 and to pay grade 
E-4 on 1 December 1985.  He served in Germany from 8 September 1984 through 25 November 1986.  

5.  He was honorably discharged for the purpose of immediate reenlistment on 7 August 1986.  He reenlisted in the RA on 8 August 1986.

6.  He accepted NJP under Article 15, UCMJ on:

* 2 March 1987 – for wrongfully using marijuana between 23 December 1986 and 23 January 1987
* 15 July 1988 – for being disrespectful in language towards a noncommissioned officer (NCO) and assaulting an NCO by throwing him to the ground and striking him

7.  In a memorandum, dated 5 August 1988, the applicant’s company commander summarized the incidents leading to the applicant’s chapter 14 recommendation.  He stated the applicant:

	a.  received an Article 15 for a positive urinalysis for using marijuana on 2 March 1987.

	b.  had been on the overweight program from November 1987 to June 1988 and received numerous counseling statements for failure to achieve the body fat content.  He was finally removed from the program.

   c.  had received counseling statements for failing the initial physical training (PT) test.  Only upon completion of remedial PT did he pass the test.  He did not display any initiative towards physical readiness.

	d.  received an Article 15 for striking an NCO on 15 July 1988.  He displayed gross neglect for good order and discipline.

	e.  had a pattern of misconduct that showed he had no redeeming qualities worthy of retention.

8.  On 5 August 1988, the applicant’s company commander recommended the applicant be discharged from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 14, for a pattern of misconduct.  

9.  On 5 August 1988, the applicant’s battalion commander recommended approval of the applicant’s discharge with the issuance of a general discharge.  The battalion commander stated the applicant’s pattern of misconduct indicated he could not accept attempts of rehabilitation and his behavior was not conducive to good order and discipline.

10.  On 12 August 1988, the separation authority approved the applicant’s discharge from the Army under the provisions of Army Regulation 635-200, chapter 14, with a general discharge.

11.  He was discharged on 18 August 1988 under the provisions of Army Regulation 635-200, chapter 14, for Misconduct-Pattern of Misconduct, with a general discharge, in pay grade E-2.  He was credited with completing 4 years,
8 months, and 13 days of net active service and he had no lost time.

12.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

14.  Army Regulation 635-200, paragraph 3-7a, specified an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of 

acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged due to a pattern of misconduct based on failure of the overweight program, failure of the initial PT test, and Article 15s for using marijuana and striking an NCO.  The applicant did not respond to attempts of rehabilitation and his behavior was not conducive to good order and discipline.  His separation action was approved and he was discharged accordingly on 18 August 1988 with a general discharge.

2.  The evidence of record shows he was well aware of the reasons for his discharge at the time he was separated.  A discharge under other than honorable conditions was normally appropriate.  It appears his chain of command considered his overall record when he was issued a general discharge.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge.  

3.  His administrative separation action was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  

4.  In view of the foregoing, there is no basis for granting his 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)                                         AR20110016458



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ABCMR Record of Proceedings (cont)                                         AR20110016458



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