IN THE CASE OF:	  

		BOARD DATE:	  26 April 2012

		DOCKET NUMBER:  AR20110023353 


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 his general discharge (GD) under honorable conditions be upgraded to an honorable discharge (HD).

2.  The applicant states in 1994 he failed his drug test and requested assistance in the form of counseling.  He argues the commander refused to assist him.

3.  The applicant provides a copy of 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's record shows he enlisted in the Regular Army on 2 March 1993 and was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

3.  His disciplinary record includes extensive formal counseling by members of his chain of command between 28 January 1994 and 3 May 1994 for patterns of misconduct that includes failure to meet financial obligations, driving without proper authorization, lack of motivation, using illegal drugs, and failure to report to his appointed place of duty.

4.  His record reveals a disciplinary history that includes his acceptance of 
non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongful use of marijuana. 

5.  On 10 May 1994, he underwent a mental status evaluation.  The evaluation revealed an individual with normal behavior; he was fully alert and oriented; his mood was unremarkable, his thinking process was clear, his thought content was normal, and his memory was fair.  The applicant had the mental capacity to understand and participate in board proceedings.  He was mentally responsible and met the retention requirements of Chapter 3, Army Regulation, 40-501 (Standards of Medical Fitness).

6.  On 3 June 1994, the unit commander notified the applicant that separation action was being initiated to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, by reason of misconduct - commission of a serious offense.  The commander cited the applicant's wrongful use of marijuana, failure to return to his appointed place of duty, lack of motivation, and failure to meet financial obligations as the basis for the action.  He also informed the applicant he intended to recommend issuance of a GD.

7.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effect.  He completed an election of rights in which he elected to waive consideration of his case by a board of officers and representation by counsel.  He also elected not to submit statements in his own behalf.

8.  On 8 June 1994, the separation authority approved the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200, paragraph 14-12c, and directed he receive a GD.  On 1 July 1994, the applicant was discharged accordingly.

9.  His DD Form 214 shows he held the rank of private/E-1 on the date of his discharge and he completed a total of 1 year and 4 months of active military service.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

12.  Paragraph 14-3 of Army Regulation 635-200 contains guidance on characterization of service for members separated under chapter 14.  It states that a UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction or higher authority unless authority is properly delegated.

13.  Paragraph 14-12c of the enlisted separations regulation provides for the separation of members for misconduct based on the commission of a serious offense which includes the abuse of illegal drugs.   

14.  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 argues his GD should be upgraded to an honorable discharge because upon failing a drug test he requested assistance which was denied.

2.  His separation action was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He received extensive counseling.  In addition, he could have referred himself for drug abuse rehabilitation.

3.  By regulation, an under other than honorable conditions discharge is normally appropriate for a member separated by reason of misconduct.  The length and honorable nature of the applicant's overall record of service was the basis for him receiving a general discharge instead of an under other than honorable conditions discharge.  However, it is equally clear his record of misconduct clearly diminished his overall record of service below that meriting a fully honorable discharge.  Therefore, it would not be appropriate to upgrade his 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)                                         AR20110023353



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ABCMR Record of Proceedings (cont)                                         AR20110023353



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