IN THE CASE OF:	  

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110024858 


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 character of service, general (under honorable conditions), be changed or upgraded to an honorable discharge (HD).

2.  The applicant states his initial character was general, under honorable conditions, and should have been changed or upgraded to an HD after six months.

3.  The applicant provides the following documents: 

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* Department of Veterans Affairs Claim (which was not attached)

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 6 October 1981, and was trained in and awarded military occupational specialty (MOS) 51B (Carpentry/Masonry Specialist)

3.  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 use of marijuana between 1 April 1986 and 1 May 1986.

4.  The applicant’s record shows he tested positive for THC (marijuana) on 19 May 1986.

5.  On 8 September 1986, the unit commander notified the applicant that action was being initiated to separate him under the provisions of Army Regulation   635-200 (Personnel Separations), chapter 14, paragraph 14-12d, by reason of misconduct - abuse of illegal drugs.  The commander cited the applicant's use of illegal drugs as the basis for the action.  He also informed the applicant he intended to recommend issuance of a general discharge (GD).

6.  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.

7.  On 30 September 1986, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12d, and directed he receive a GD.  On 3 October 1986, the applicant was discharged accordingly.

8.  The applicant's DD Form 214 shows he held the rank of specialist four/E-4 on the date of his discharge, and he completed a total of 4 years, 11 months, and 28 days of active military service.

9.  The applicant provides a copy of his DD Form 215 which shows he was awarded the Overseas Service Ribbon and the Army Service Ribbon.  

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 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.  

13.  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 that his GD should have been changed or upgraded to an HD after six months from his discharge.  The Army has never had a policy wherein a member's character of service is automatically upgraded six months after their discharge or due to passage of time.  

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 his NJP for wrongfully use or marijuana and positive urinalysis. 

3.  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. q

4.  By regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  It is clear his record of misconduct 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)                                         AR20110024858



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ABCMR Record of Proceedings (cont)                                         AR20110024858



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