IN THE CASE OF:	  

		BOARD DATE:	  15 May 2012

		DOCKET NUMBER:  AR20110024241 


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 the biggest disgrace in his life was how he departed military service.  He has been through Drug and Alcohol treatment and was able to witness the wreckage of his past.  He is terribly sorry about how he left the Army, his fellow Soldiers, and how he let himself down.

3.  He also states that since leaving active duty due to illegal drug abuse he has been ashamed of his actions.  He realized how immature his actions were and he is now attempting to correct what he can.  He asks the Board to review his entire military record to see that not all of his enlistment was bad.  He was presented with an Army Achievement Medal (AAM) for his work with Company C, 2nd Battalion, 4th Infantry.  He also received a couple of Certificates of Achievements.  There was a period of his enlistment in which he was a thief.  He then allowed himself to fall in with the wrong group of Soldiers and let peer pressure lead to his abuse of illegal drugs

4.  The applicant provides the following documents in support of his application: 

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Behavioral forms
* Certificate of Completion (2) and Certificate of Appreciation
* Newspaper article
* Self-authored statement
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 7 March 1984, and was trained in and awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).

3.  On 27 November 1985, the Clinical Director, Heilbronn Community Counseling Center (CCC) prepared a response to the commander for information pertaining to rehabilitation activities for the applicant.  The director stated the applicant referred himself to the Alcohol and Drug Prevention and Control Program (ADPCP) based on his uncontrolled and excessive alcohol consumption.  He indicated the applicant declined further treatment; therefore, potential for successful rehabilitation was poor.

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 wrongfully ingesting marijuana on 17 March 1986 and 28 April 1986.

5.  The applicant’s record shows he tested positive for THC (marijuana) on two separate occasions, in March 1986 and April 1986.

6. On 8 July 1986, the unit commander notified the applicant he was recommending him for discharge for commission of a serious offense and abuse of illegal drugs.  The commander cited his positive urinalysis use of marijuana in March 1986 and April 1986.  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 30 July 1986, 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 20 August 1986, the applicant was discharged accordingly.

9.  The applicant's DD Form 214 shows he held the rank of private/E-1 on the date of his discharge, and he completed a total of 2 years, 5 months, and 14 days of active military service.

10.  The applicant provides several documents showing his post-service accomplishments and the accomplishments of his children.

11.  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.

12.  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.

13.  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.  

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 discharge should be changed to HD due to his immature actions regarding his declination of further rehabilitation treatment and illegal drug abuse while serving on active duty.

2.  The evidence of record confirms the applicant was discharged for misconduct based on commission of a serious offense based on his misconduct which included two NJPs for wrongfully ingesting marijuana. 

3.  By regulation, an UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  It is 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.

4.  The applicant's post service accomplishments are noteworthy; however, alone they are not sufficiently mitigating 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)                                         AR20110024241



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ABCMR Record of Proceedings (cont)                                         AR20110024241



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