IN THE CASE OF:	  

		BOARD DATE:	  23 February 2012

		DOCKET NUMBER:  AR20110016689 


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 upgrade of his general discharge to an honorable discharge.

2.  He states:

* he corrected his problem through anger management classes and counseling
* over the past years he has maintained gainful employment and a healthy lifestyle
* whenever the need presented itself, he has managed to work within the Fort Smith, AR, community as a volunteer 

3.  He provides a self-authored statement.

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 (RA) on 1 November 1990.

3.  His record reveals a disciplinary history that includes two DA Forms 4856 (General Counseling Form) documenting counseling sessions on 28 January and 10 March 1993 for writing a dishonored check and an overdue payment on his credit program account.

4.  His record contains a memorandum from the Hawaii Resident Agency, Seventh Region, U.S. Army Criminal Investigation Command (CID), Subject:  CID Report of Investigation - Final, dated 26 May 1993, that states he was the subject of a criminal investigation due to the wrongful possession and distribution of marijuana.

5.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on (UCMJ) on 24 June 1993 for wrongful possession and distribution of marijuana on 8 January 1993.

6.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 12 July 1993.  The examining physician determined he was mentally responsible and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  

7.  On 9 August 1993, he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for serious misconduct – commission of a serious offense, for possessing and distributing marijuana.

8.  On 10 August 1993:

	a.  He acknowledged receipt of the proposed separation action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and of the effect of any action taken by him in waiving his rights. Subsequent to receiving this counseling, the applicant declined his rights to legal counsel and to submit a statement in his own behalf.

	b.  His company commander recommended his discharge under the provisions of Army Regulation 635-200, chapter 14 for serious misconduct.  The commander also recommended waiver of the rehabilitative requirements.

9.  On 11 August 1993, the intermediate commander recommended approval of the discharge action with a general discharge.

10.  On 12 August 1993, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed the issuance of a General Discharge Certificate.

11.  On 14 September 1993, he was discharged accordingly.  The DD Form 214 he was issued at the time shows in:

* item 12c (Net Active Service this Period) he completed 2 years,
10 months, and 14 days of creditable active service
* item item 24 (Character of Service) the entry "under honorable conditions (general)" indicating a general discharge
* item 25 (Separation Authority) the entry Army Regulation 635-200, paragraph 14-12c
* item 28 (Narrative Reason for Separation) the entry "misconduct – commission of a serious offense"

12.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  He submitted a self-authored statement indicating:

	a.  when he enlisted into the Army, he was trying to make a positive change in his life after being a member of a gang;

	b.  he was angry and would not follow directions from anyone; 

	c.  after his discharge, he realized he needed to get his anger under control and underwent anger management classes and counseling; and 

   d.  he has been gainfully employed in the Fort Smith community and has volunteered whenever he could.

14.  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, conviction by civil authorities, desertion, or absence without leave.  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 considered appropriate.

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.  Evidence of record shows the applicant was counseled for writing a bad check and having an overdue payment on his credit program account.  He also received NJP under the UCMJ for possession and distribution of marijuana.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  The evidence of shows he was recommended for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – serious offense.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  Although an under other than honorable conditions discharge was normally warranted for separation for misconduct, it appears his chain of command considered his overall service when he was recommended for and subsequently approved for separation with a general discharge.

4.  His post-service conduct is noteworthy; however, the ABCMR does not upgrade discharges based on the passage of time and post-service conduct alone.

5.  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 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)                                         AR20110016689



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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