IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110017535 


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 general discharge to an honorable discharge.

2.  He states he:

* was involved in a situation while attempting to separate from the military and he was subsequently given a general discharge
* was a decorated Soldier and he was actively recruiting new Soldiers at one time;  he believes he should have received an honorable discharge 

3.  He provides no additional documents.  

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 June 1977 and he continued to serve on active duty through reenlistments on 2 June 1980 and 30 March 1983.

3.  He accepted nonjudcial punishment under Article 15, Uniform Code of Military Justice on two separate occasions for the following offenses:

* wrongfully using marijuana
* violating a lawful general regulation by residing in an apartment with an individual who was in the delayed entry program
* being absent without leave (AWOL) from 13 to 20 November 1984

4.  On 24 November 1984, the unit commander notified him of the proposed recommendation to discharge him under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 14, section III for misconduct.  He was advised of his rights.  The specific reasons for this recommendation included the aforementioned misconduct and aggravated assault by cutting or stabbing.  

5.  He consulted with legal counsel, requested consideration of his case by a board of officers, requested a personal appearance before a board of officers, and did not submit statements in his own behalf.  

6.  A board of officers met on 15 April 1985 and recommended the applicant be discharged from the military service due to misconduct – commission of a serious offense with a general discharge.

7.  On 25 April 1985, the separation authority approved the recommendation of elimination of the applicant for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12c with issuance of a general discharge.

8.  On 7 June 1985, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He completed 2 years, 2 months, and 8 days of active military service during the period under review and 7 years, 10 months, and 5 days of total active military service.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows lost time from 13 May to 7 June 1985.  His service record is void of disciplinary action for this period of lost time.

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 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  

12.  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.  The applicant’s service record shows he received two Article 15s for wrongfully using marijuana, violating a lawful general regulation, aggravated assault, and being AWOL (8 days) during the period under review.  In addition, his DD Form 214 shows lost time from 13 May to 7 June 1985 (25 days).  

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant a fully honorable discharge and characterized his service as under honorable conditions (general).  He has not presented sufficient evidence which warrants changing his general discharge under honorable conditions to fully honorable.

4.  His service record does not indicate the actions taken in his case were in error or unjust.  Therefore, 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)                                         AR20110017535



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ABCMR Record of Proceedings (cont)                                         AR20110017535



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