IN THE CASE OF:	 

		BOARD DATE:	    28 August 2012

		DOCKET NUMBER:  AR20120004179 


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 be upgraded to an honorable discharge.

2.  The applicant states he had personal problems that led to his discharge.  He married after completing his advanced individual training and moved his wife to Fort Bragg, North Carolina.  His wife would not do anything and the house and kids were dirty and he would have to come home and clean everything up and fix dinner for everyone.  He continues by stating that his spouse got into drugs and showed up at his commander’s office and cussed him out before his commander imposed nonjudicial punishment (NJP) against him, so he was in trouble before the punishment was imposed.  He also states that he intended to make the Army a career and had he not gotten married he would have had a wonderful enlistment.  Since his discharge he has gone to college for a couple of years and is going to restart again.  Additionally, he is involved in his son’s life and in church.  

3.  The applicant provides a one-page letter explaining his application and four third-party letters of support from members of his church.

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 11 January 1995 for a period of 3 years and 17 weeks and training under the airborne infantry training option.  He completed his one-station unit training as an indirect fire crewman and his airborne training at Fort Benning, Georgia and was transferred to Fort Bragg, North Carolina for his first and only duty assignment. 

3.  On 9 February 1996 NJP was imposed against him for the wrongful use of marijuana during the period 27 October to 27 November 1995.

4.  On 11 July 1996 the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct – abuse of illegal drugs.  He cited the applicant’s NJP and his lack of motivation and judgment as the basis for his recommendation. 

5.  After consulting with counsel the applicant declined the opportunity to submit a statement in his own behalf.

6.  The appropriate authority approved the recommendation for discharge on 23 July 1996 and directed that he be furnished a General Discharge Certificate.

7.  Accordingly, he was discharged under honorable conditions on 15 August 1996 under the provisions of Army Regulation 635-200, paragraph 14-12b due to misconduct.  He had served 1 year, 7 months, and 4 days of active service.

8.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

10.  Paragraph 3-7a of Army Regulation 635-200 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.
  
3.   The applicant’s contentions and supporting documents have been noted; however, they are not sufficiently mitigating when compared to the serious nature of his offense and the lack of mitigating circumstances at the time.  The applicant’s overall service simply does not rise to the level of a fully honorable discharge. 

4.  Accordingly, there appears to be no basis to grant the applicant’s request for 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)                                         AR20120004179





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ABCMR Record of Proceedings (cont)                                         AR20120004179



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