IN THE CASE OF:	  

		BOARD DATE:  7 June 2012

		DOCKET NUMBER:  AR20110024041 


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) be upgraded to an honorable discharge (HD).  

2.  The applicant states he is seeking the upgrade to improve his employment opportunities.  

3.  The applicant provides  no documentary evidence in support of his request.  

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 after serving in the U.S. Army Reserve he enlisted in the Regular Army on 24 February 1994.  It further shows he held and served in military occupational specialty 92A (Automated Logistics Specialist).
3.  His record documents no acts of valor or significant achievement.

4.  The applicant's disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on 15 March 1995, for being drunk on duty and for the wrongful use of marijuana.  

5.  On 7 July 1995, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, by reason of misconduct (commission of a serious offense) with a GD.  The unit commander cited the applicant's abuse of illegal drugs as the basis for taking the action.

6. On 12 July 1995, the applicant consulted with legal counsel and was advised of the basis for the separation action, its effects, and of the rights available to him.  Subsequent to this counseling the applicant submitted a conditional waiver for a GD in which he voluntarily waived consideration of his case by an administrative separation board contingent on receiving a GD.  

7.  On 22 August 1995, the separation authority approved the applicant's separation action for misconduct under the provisions of Army Regulation 
635-200, chapter 14, and directed the issuance of a GD.  On 8 September 1995, the applicant was discharged accordingly.

8.  The DD Form 214 issued to the applicant shows he held the rank of private/E-1 on the date of discharge and that he completed a total of 1 year,
11 months, and 22 days of creditable active military service.  It further shows that during his active duty tenure he earned the National Defense Service Medal and Army Service Ribbon. 

9.  The applicant did not apply to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  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.  

11.  Paragraph 14-3 of Army Regulation 635-200 contains guidance on characterization of service for members separated under chapter 14.  It states that an under other than honorable conditions (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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his GD should be upgraded to improve his employment opportunities has been carefully considered.  However, the Army does not have a policy that allows for an upgrade of a discharge solely for the purpose of improving employment opportunities or to obtain benefits.  A discharge may be upgraded by the ADRB or this Board if after a review either board finds an error or injustice in the discharge process, based on equity, or the member’s overall record of service.  

2.  The applicant's separation processing 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.  The evidence of record confirms the applicant was separated under the terms of his conditional waiver which was contingent on him receiving a GD, which he voluntarily submitted to avoid a possible UOTHC discharge.

3.  By regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  Clearly, the nature of the applicant's overall record of service was recognized by the acceptance of his conditional waiver for a GD by the separation authority.  However, it is equally clear his record of misconduct diminished his overall record of service below that meriting a fully honorable discharge.  Therefore, absent evidence of error or injustice in the discharge process, there is an insufficient evidentiary basis to support an upgrade of 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)                                         AR20110024041



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ABCMR Record of Proceedings (cont)                                         AR20110024041



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