IN THE CASE OF:	  

		BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20120000295 


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

2.  The applicant states:

   a.  his military record is untrue;

   b.  the GD he received in February 1985 was supposed to be upgraded to an HD 6 months later in August 1985;

   c.  his record should reflect the two and a half years service he completed from August 1982 through February 1985; 
   
   d.  he reached the grade of E-4; and
   
   e.  he has proof of his recovery since August 2011.
   
3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 4 (Enlistment or Reenlistment Documents) (pages 1 and 4)
* DA Form 2-1 (Personnel Qualification Record) (page 2)
* Letter dated 14 December 2011
* 3 self-authored statements

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 initially enlisted in the U.S. Army Reserve (USAR) on 28 June 1982 for a period of 6 years.  Page 4 of his DD Form 4 shows he discharged from the USAR after completing 2 months and 5 days service.

3.  On 1 September 1982, the applicant enlisted in the Regular Army (RA).  He was trained in and awarded military occupational specialty 57E (Laundry and Bath Specialist).

4.  His DA Form 2-1 shows he was promoted to the rank of specialist four (SP4/E-4) on 1 February 1984, and this was the highest rank he attained while on active duty.  Item 20 (Basic Enlisted Service Date) contains the entry "820628."

5.  The applicant’s record includes three DA Forms 4856-R (General Counseling Form) he received for the following:

* failing to perform his duties on 24 September 1984
* having a positive urinalysis test on 28 September 1984
* failing to perform his prescribed duties on 3 October 1984

6.  The applicant’s record confirms that he twice accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following:

* 16 August 1984, for wrongfully possessing some amount of marijuana, reckless driving, and disobeying a lawful order 
* 17 October 1984, for wrongfully using some amount of marijuana

7.  The two DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ) show the applicant was reduced to private first class (PFC/E-3) on 16 August 1984 and to private two (PV2/E-2) on 17 October 1984, as a result of the two NJPs he received.

8.  On 30 October 1984, the applicant underwent a mental status evaluation and the results showed he demonstrated:

* normal behavior and thought content
* he was fully alert and oriented
* an unremarkable affect
* a clear thinking process
* good memory
* he was mentally responsible
* he met retention requirements
* he had the mental capacity to understand and participate in separation proceedings.

9.  On 25 October 1984, the applicant’s commander informed him of his intent to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for patterns of misconduct.  The commander cited the applicant's illegal use of a controlled substance (marijuana) as the basis for his recommendation.  The commander informed the applicant of his right to consult with legal counsel, to obtain copies of documents pertaining to the separation action, to request a hearing before an administrative board (if accrued 6 or more years of active or Reserve service), to be represented by either or both military and civilian counsel, to waive his rights, and/or to submit a request for a conditional waiver of any rights.  The applicant failed to complete his election of rights.

10.  On 12 December 1984, the separation authority waived further counseling and rehabilitative requirements for the applicant and approved his administrative separation action and directed the issuance of a GD.  On 21 December 1984, the applicant was discharged accordingly.

11.  The DD Form 214 issued to the applicant confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b and d, by reason of "misconduct, drug abuse."  It also shows he completed 2 years, 3 months, and 21 days of creditable active service and that he held the rank/grade of private two (PV2/E-2) at the time of discharge.

12.  The applicant provides Dobb and Douglass Counties Community Service Boards, letter dated 14 December 2011.  It shows the applicant had attended "Out Patient Groups" focusing on stress reduction, anger management, substance abuse, sobriety and relapse prevention, and healing from family dysfunction since 9 August 2011.  

13.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  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 (UOTHC) is normally appropriate.

15.  Army Regulation 635-200, paragraph 3-7a, states 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 contends his GD was to be upgraded to an HD 6 months after his discharge from active duty.  However, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

2.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  His overall record of service was considered and resulted in the issuance of a GD instead of the UOTHC discharge that is normally appropriate for members separated for misconduct.  The applicant's disciplinary history clearly diminished the overall quality of his service below that meriting a fully honorable discharge.
4.  The evidence of record confirms the applicant completed 2 years, 3 months, and 21 days of creditable active duty service from 1 September 1982 through 21 December 1984.  There is no evidence in his record and he failed to provide any evidence to corroborate his claim of service in the RA from August 1982 through February 1985.  Accordingly, there is no basis upon which to grant this portion of requested relief.

5.  The applicant's claim that he obtained the rank of SP4/E-4 while serving on active duty is corroborated by the entry contained on his DA Form 2-1 that confirms he was promoted to SP4 on 1 February 1984.  However, he was twice reduced as a result of NJP and the last reduction was to the rank of PV2/E-2 on 17 October 1984.  This is the rank he held at the time of his discharge from active duty, as evidenced on his DD Form 214.  Therefore, his rank and grade is accurately documented in his military record and it should not be changed.

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)                                         AR20120000295





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ABCMR Record of Proceedings (cont)                                         AR20120000295



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