BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20120008212 


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 be upgraded to honorable.

2.  The applicant states:

* He was 25 years old when this happened
* He enlisted in the Army at age 17 
* He is a Persian Gulf war veteran
* He made one mistake and he does not believe it should follow him the rest of his life
* After he was separated from the Army he continued to do positive things
* He is currently in Theology School trying to get his Bachelors degree

3.  The applicant provides:

* Certificates of achievement and training
* Letter of commendation

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 was born on 21 August 1970.  He enlisted in the Regular Army on 22 July 1988 for a period of 4 years.  He completed his training and was awarded military occupational specialty 31S (Satellite Communications System Operator/Repairer).  He remained on active duty through continuous reenlistments.  He served in Southwest Asia from 15 December 1990 to 9 May 1991.  He attained the rank of sergeant on 1 December 1992.  He served two additional tours in Southwest Asia from 27 July to 22 December 1993 and from 20 September 1994 to 3 February 1995.  

3.  On 8 February 1996, nonjudicial punishment (NJP) was imposed against the applicant for using cocaine.

4.  On 23 February 1996, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct (commission of a serious offense).  The unit commander cited the applicant's positive drug test for cocaine use.  

5.  On 19 March 1996, he consulted with counsel and waived consideration of his case by an administrative board contingent upon receiving a general discharge.

6.  On 28 March 1996, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

7.  On 5 April 1996, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense) with a general discharge.  He completed a total of 7 years, 8 months, and 14 days of creditable active service.  

8.  In support of his claim, he provided certificates of achievement and training he earned in 2011 and 2012. 

9.  There is no evidence in the available record that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.



10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  The regulation states that abuse of illegal drugs is serious misconduct.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

11.  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 contends he was 17 years of age when he enlisted.  However, age is not a sufficiently mitigating factor.  Although he was age 17 when he enlisted, he successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  In addition, he served almost 8 years of service prior to his misconduct.  

2.  His post service accomplishments are commendable.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

4.  His record of service during his last enlistment included one NJP for using cocaine.  He was a sergeant.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable 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)                                         AR20120008212



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ABCMR Record of Proceedings (cont)                                         AR20120008212



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