BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120009677 


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 uncharacterized discharge be upgraded to a general or honorable discharge.

2.  The applicant states that his discharge should be upgraded because he was told that it would be upgraded within 6 months. 

3.  The applicant provides no additional documents with his application.

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 U.S. Army Reserve on 9 September 1989 for       a period of 8 years.  He was ordered to initial active duty for training on             15 November 1989.  He completed his basic training at Fort Dix, New Jersey, and was transferred to Fort Eustis, Virginia, on 5 February 1990 to undergo his advanced individual training as a watercraft operator.

3.  On 10 April 1970, nonjudicial punishment was imposed against him for the wrongful use of cocaine.

4.  On 16 April 1990, 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 due to his illegal use of drugs.  He explained the applicant’s rights to him and advised him that he could expect to encounter substantial prejudice in civilian life.

5.  After consulting with counsel, the applicant elected to submit a statement in his own behalf whereas he asserted that it was unjust to discharge him from the service for only one offense and contended that he should have been punished but given a chance at rehabilitation and the opportunity to continue his service.

6.  The appropriate authority approved the recommendation for discharge on     24 April 1990 and directed that his service be uncharacterized.

7.  Accordingly, he was discharged on 1 May 1990 under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct – abuse of illegal drugs.  He had served 5 months and 17 days of active service and his service was uncharacterized.

8.  There is no evidence that the applicant 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.  Army Regulation 635-200, paragraph 3-9a(1), states a separation will be described as entry-level with service uncharacterized if processing is initiated 


while a Soldier is in an entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case.

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.

12.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.   

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.  The characterization of his service was appropriate considering the seriousness of his misconduct (wrongful use of cocaine).

3.  While the commander could have discharged the applicant under other than honorable conditions, he elected to discharge the applicant under entry level status, which indicates that he took the applicant’s record of service and age into consideration when he directed his service to be uncharacterized. 

4.  Additionally, there were not then nor are there now any provisions for an automatic upgrade of such discharges.

5.  An uncharacterized separation is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  

6.  In view of the foregoing, there is no basis for granting 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)                                         AR20120009677





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ABCMR Record of Proceedings (cont)                                         AR20120009677



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