IN THE CASE OF:	  

		BOARD DATE:  17 April 2012

		DOCKET NUMBER:  AR20110019100 


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 that his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states his discharge was unjust because he was never convicted by a court-martial.

3.  The applicant provides no additional evidence.

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 record shows he enlisted in the Regular Army (RA) on 29 December 1982.  Upon completion of initial entry training, he was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  His military service record reveals the first time he tested positive for use of a controlled substance, his unit was lenient and did not take disciplinary action against him based upon his promise not to do it again and the recommendation of his noncommissioned officer support channel.  The applicant was command referred to the local Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) to undergo rehabilitation counseling and treatment.  The applicant's drug abuse counselor opined the applicant would not benefit from further counseling because he refused to admit he had a problem.  While still enrolled in ADAPCP, the applicant consented to a urinalysis and tested positive for use of a controlled substance again.

4.  On 24 October 1984, the applicant's unit commander notified him he was initiating action which could result in separation from the Army with a general discharge under honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct for wrongful use of a controlled substance.  He was advised of his rights and the impact of the discharge.  He acknowledged receipt of the notification and requested consulting counsel.

5.  On 30 October 1984, after consulting with legal counsel, the applicant requested:

* Consideration of his case by a board of officers
* Personal appearance before a board of officers
* Consulting counsel and representation by counsel

6.  On 1 November 1984, the unit commander recommended that the applicant appear before a board of officers convened to determine if he should be separated from the service based on misconduct, commission of a serious offense.  The commander noted the fact that the applicant had no record of previous courts-martial convictions or nonjudicial punishment.  The applicant's intermediate commanders concurred with the recommendation.

7.  On 10 December 1984, the applicant appeared in person before a board of officers who considered his testimony and all of the evidence presented in his case in order to determine whether he should be separated for commission of a serious offense under the provisions of Army Regulation 635-200.  As a result, the board determined the applicant was unacceptable for further retention in the military service because of commission of a serious offense and recommended he be discharged from the service with the issuance of a General Discharge Certificate.

8.  On 27 December 1984, the separation authority approved the board's findings and recommendations and directed that the applicant be separated under the provisions of Army Regulation 635-200, chapter 14, and issued a General Discharge Certificate.

9.  On 24 January 1985, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows:

* his service was characterized as under honorable conditions (general)
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c
* his narrative reason for separation was "Misconduct/Drug Abuse"

10.  There is no evidence the applicant 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 deals with separation for various types of misconduct which includes drug abuse and provides that individuals identified as drug abusers may be separated prior to their normal date of expiration of term of service.  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 contention that his record should be corrected by upgrading his discharge to an honorable discharge was carefully considered and found to lack merit.

2.  The applicant's contention that he was never convicted by a court-martial is duly noted.  However, the evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, the quality of the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel to warrant an honorable discharge.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable discharge.

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)                                         AR20110019100





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ABCMR Record of Proceedings (cont)                                         AR20110019100



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