IN THE CASE OF:	  

		BOARD DATE:  17 April 2012

		DOCKET NUMBER:  AR20110020360 


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

2.  The applicant states he feels the punishment was too severe.  He was young and foolish, but he has not used any drugs for over 20 years and upgrading his discharge would enhance his chances for employment.

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 was born on 12 April 1965 and enlisted in the Regular Army on 6 August 1986 at the age of 21.  Upon completion of initial entry training, he was awarded military occupational specialty 31M (Multichannel Communications Equipment Operator).  The highest rank/grade he attained while serving on active duty was private /E-2.

3.  His military service record reveals a disciplinary history that includes:

	a.  apprehension for drunk driving on 26 February 1987.

	b.  suspension of his driving privileges for the aforementioned drunk driving arrest.

	c.  adverse counseling on 13 August 1987 for failing to pay a debt.

	d.  acceptance of nonjudicial punishment under Article 15 of the Uniform Code of Military Justice on 12 November 1987 for wrongful use of marijuana and cocaine which were detected by a urinalysis.

4.  On 13 November 1987, the applicant was issued a Bar to Reenlistment Certificate.

5.  The applicant's unit commander notified him she 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), chapter 14, for commission of a serious offense:  positive urinalysis, receiving an Article 15, suspension of driving privileges for driving under the influence, two adverse counseling statements, and receiving a bar to reenlistment.  He was advised of his rights and the impact of the discharge.  He acknowledged receipt of the notification and requested consulting counsel and to be provided a copy of his separation packet.

6.  He consulted with legal counsel.

7.  The unit commander subsequently recommended that the applicant be separated from the service based on his commission of a serious offense.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general discharge under honorable conditions.

8.  The separation authority approved the applicant's separation and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14, for misconduct – commission of a serious offense.  He determined his service would be characterized as under honorable conditions and that he would be issued a General Discharge Certificate.
9.  On 8 January 1988, 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
* he was discharged under the provisions of Army Regulation 635-200, chapter 14
* his narrative reason for separation was "Commission of a serious offense"

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.  His record shows he was over 21 years of age at the time of enlistment and 22 years of age at the time of his offenses.  However, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  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.

4.  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)                                         AR20110020360





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ABCMR Record of Proceedings (cont)                                         AR20110020360



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