BOARD DATE:   29 November 2012

		DOCKET NUMBER:  AR20120008563


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 upgrade of his general discharge.

2.  The applicant states his "discharge court" told him his discharge would be automatically upgraded to an honorable discharge 6 months after his discharge.

3.  The applicant provides no additional evidence in support of his request.

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 14 April 1987.  He completed initial entry training and he was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  Upon the completion of his initial entry training, he was assigned to Headquarters and Headquarters Company, 25th Infantry Division (Light), Schofield Barracks, HI.

3.  On 9 December 1988, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 (Summarized), Uniform Code of Military Justice (UCMJ), for failing to go at the prescribed time to his appointed place of duty
17 November 1988.

4.  On 2 March 1989, he was reported absent without leave (AWOL).  He remained in an AWOL status until he returned to his unit on 3 March 1989.

5.  On 9 March 1989, he accepted NJP under the provisions of Article 15, UCMJ, for wrongfully using marijuana on 9 February 1989 and for failing to go at the prescribed time to his appointed place of duty on 19 February 1989.

6.  On 27 March 1989, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct – commission of a serious offense.  The reason for the proposed action was specifically his receipt of punishment under the UCMJ for wrongfully using marijuana.  Additionally, the applicant was counseled on several occasions for being disrespectful to and disobeying lawfully orders from his superior noncommissioned officers.  He was informed that the least favorable characterization of service he could receive is a general discharge.  On this same date, the applicant acknowledged receipt of the notification memorandum.

7.  On 28 March 1989, he acknowledged he had been advised by counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 14, and its effect, of the rights available to him and of the effect of any action taken by him in waiving his rights.  He was further advised that he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge; however, such consideration by either Board would not imply his discharge would be upgraded.  He requested consulting counsel; however, he elected not to submit statements in his own behalf.

8.  On 28 March 1989, his immediate and intermediate commander recommended the applicant's separation from the Army under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct – commission of a serious offense.  They recommended the applicant receive a general discharge.

9.  On 28 March 1989, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense and directed he receive a General Discharge Certificate.

10.  On 11 April 1989, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 1 year, 11 months, and 27 days of net active service. The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

11.  The applicant subsequently applied to the ADRB for an upgrade of his discharge.  On 10 December 1996, after careful consideration of the applicant's military records and all other available evidence, the ADRB determined the applicant was properly and equitably discharged.  Therefore, his request was denied.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It further sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

	a.  Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  The regulation in effect at the time stated individuals in pay grades below E-5 could be processed after a first drug offense and must have been processed for separation after a second offense.  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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The evidence of record shows he consulted with counsel and he was advised of the basis for the separation action.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the ADRB or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20120008563



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