IN THE CASE OF:	  

		BOARD DATE:	  10 July 2012

		DOCKET NUMBER:  AR20120000409 


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, in effect, that his discharge under honorable conditions (general) be upgraded to an honorable discharge.

2.  The applicant states he was very young at the time and the other Soldier involved admitted the drugs were his.

3.  The applicant provides DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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.  On 14 October 1987, the applicant enlisted in the Regular Army for 3 years.  He completed training as a cannon crewman.  He was promoted to pay grade      E-2 on 14 April 1988.

3.  The applicant's official military record contains a Military Police (MP) Report which states that on 7 October 1988, while operating a 1988 Mazda, he was involved in a single vehicle accident.  An odor of alcoholic beverage was detected about his person.  A suspected marijuana cigarette was found in the vehicle and his tags were expired.  The applicant was administered a field sobriety test which he failed.  He was arrested, transported to the county jail, and administered a blood alcohol test.  The results of the test had not returned prior to completion of the MP Report.  The applicant was further processed and held on a $1,479.00 bond.  He was later released.  He had a court date on 11 October 1988, where he pled guilty to all charges and was fined $320.00 plus service fee and costs.

4.  The applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct – commission of a serious offense.  His commander cited possession of a controlled substance as a basis for his recommendation.  The commander stated that all other attempts to make the applicant a useful Soldier had failed and that he had been given every opportunity to improve his conduct and duty performance.

5.  The applicant acknowledged receipt of the notification on 16 November 1988 and he elected to submit a statement in his own behalf.  He stated:

* he believed he deserved another chance to stay in the Army
* he was young and he realized that he made some big mistakes over the past few months
* he was under a lot of stress due to some family problems
* he came to realize that he could not bring his family problems into his Army life
* he understood that his career was in jeopardy and that he was barred from future service
* all he wanted to do was the 2 years left on his enlistment agreement and to be the best he could be while he was soldiering

6.  The appropriate authority approved the recommendation for discharge on 29 November 1988 and directed the issuance of a General Discharge Certificate.


7.  On 9 December 1988, the applicant was discharged under honorable conditions, under the provisions of Army Regulation 635-200, chapter 14-12c(2), for misconduct – abuse of illegal drugs.  He completed 1 year, 1 month, and 26 days of net active service this period.  He received a General Discharge Certificate.

8.  The available records do not show that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

	b.  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's contentions have been noted.

2.  His records show he was apprehended by MP investigators for possession of a controlled substance.  His youth and immaturity is not sufficiently mitigating to warrant an upgrade of his discharge to fully honorable.

3.  In accordance with the applicable regulation, a discharge under other than honorable conditions was normally considered appropriate; however, he received a discharge under honorable conditions.  Based on the seriousness of his offenses, the characterization of his service is not too harsh.

4.  In view of the foregoing, the applicant's request should be denied.


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)                                         AR20120000409





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ABCMR Record of Proceedings (cont)                                         AR20120000409



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