IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110017211 


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 did not start using drugs until he went into the Army
* marijuana was very easy to get in the Army
* he entered a rehabilitation program to stop using drugs prior to his discharge
* he had problems completing the program and he was discharged
* he wants the military to forgive him and to upgrade his discharge to honorable

3.  He 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 15 September 1975.  He completed training and he was awarded military occupational specialty (MOS) 11B (Infantryman).  He was discharged on 30 May 1979 for the purpose of immediate reenlistment.  He reenlisted on 31 May 1979 and again on 25 May 1983.

3.  On various dates between February and April 1984, he received adverse counseling for failing to follow instructions, failing to make formation on time, and missing formation.

4.  On 15 June 1984, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for:

* dereliction in the performance of his duties by failing to report to his service school course on 20 May 1984
* wrongfully appropriating U.S. currency of a value of $540.00, the property of the U.S. Government, on 1 May 1984

5.  His commander subsequently initiated a DA Form 4126-R (Bar to Reenlistment Certificate), dated 9 July 1984, based on his record of adverse counseling and NJP action.  He acknowledged receipt of the proposed action and elected not to submit a statement in his own behalf.

6.  On 5 November 1984, he accepted NJP under Article 15, UCMJ for:

* wrongfully using some amount of marijuana on 2 July 1984
* being absent without leave from 5 to 9 October 1984

7.  His record contains DA Forms 4187 (Personnel Action) that show he was confined by civilian authorities from 23-27 August 1984 and 9-28 October 1984.

8.  His discharge packet is not available for review.  However, his DD Form 214 shows he was discharged on 30 November 1984 under the provisions of Army Regulation 635-200, (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct - abuse of illegal drugs with a general discharge.  The
DD Form 214 he was issued at the time shows he completed 9 years, 2 months, and 16 days of creditable active service with 29 days of time lost.

9.  His record is void of any evidence showing he was enrolled in a rehabilitation treatment program prior to his discharge.

10.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribed 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 for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

	b.  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 contends he did not start using drugs until he went into the Army, marijuana was very easy to get in the Army, and he was in a rehabilitation program but he had problems completing the program.  However, there is no evidence he took steps to self-refer for drug abuse treatment while in the Army.

2.  His record shows he received two Article 15s, he was barred from reenlistment, he received adverse counseling, and he was confined by civilian authorities on two separate periods.


3.  In the absence of evidence to the contrary, it is presumed that the applicant's administrative discharge proceedings were conducted in accordance with law and regulations applicable at the time.

4.  An under other than honorable conditions discharge was normally appropriate for a Soldier discharged under Army Regulation 635-200, chapter 14, for misconduct.  It appears the separation authority determined the applicant's overall record of service did not meet the standards of acceptable conduct and performance of duty to warrant a fully honorable discharge and the applicant has not presented sufficient evidence that warrants changing his general discharge to a fully honorable discharge.

5.  In view of the foregoing, there is an insufficient evidentiary 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.

ABCMR Record of Proceedings (cont)                                         AR20110017211



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ABCMR Record of Proceedings (cont)                                         AR20110017211



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