IN THE CASE OF:	  

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120010249 


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 an upgrade of his general under honorable conditions discharge to an honorable discharge.

2.  The applicant states:

* he is living an honorable and law abiding life with children and grandchildren
* he realizes now, after all the years, it is honorable to live right with his family and he has stayed on the right track
* he was young at the time of his discharge and now that he has children, he is trying to set a good example for them
* he has been a good father and grandfather
* his sons are considering joining the military

3.  The applicant provides a DD Form 293 (Application for 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.  The applicant enlisted in the Regular Army on 29 September 1987.  He completed training and was awarded military occupational specialty 13B (Cannon Crewmember).  The highest rank/grade he attained while on active duty was private/E-2.

3.  A Standard Form 93 (Report of Medical History), dated 28 August 1987, shows the applicant admitted to smoking marijuana about 1 month prior to his medical examination for enlistment in the Army.

4.  On 29 February 1988, the applicant received monthly counseling concerning his job performance, appearance, promotion, drug and alcohol use, and finances.  

5.  On 10 May 1988, the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for violating a lawful general regulation by drinking while on guard duty.  

6.  On 27July 1988, the applicant was counseled for being in an improper uniform (no rank on the uniform) and on 29 July 1988, he received monthly counseling concerning his job performance, appearance, and drinking in the billets.

7.  On 31 August 1988, the applicant was counseled on missing items from his TA-50 (Table Allowance 50 – Army issued individual equipment).

8.  A DA Form 4856, dated 19 October 1988, shows the applicant was counseled for continued unsatisfactory performance.  He was advised that although counseling had been accomplished, not as a [non]punitive measure under Article 15, UCMJ, but as an administrative measure to stress that continued behavior of a similar nature could result in administrative action being initiated to eliminate him from the service under chapter 13 or 14 under the provisions of Army Regulation 635-200 (Enlisted Separations), for unsatisfactory performance or misconduct.

9.  On 24 October 1988, the applicant received nonjudicial punishment under the provisions of Article 15, UCMJ, for wrongful use of marijuana between 22 July 1988 and 22 August 1988.

10.  On 6 December 1988, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12b(2) of Army Regulation 635-200 for a pattern of misconduct.  He recommended a general discharge.

11.  The applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  Additionally, he also elected not to submit statements on his own behalf.  In his acknowledgement, he indicated he:

* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws

12.  On 27 January 1989, the separation authority approved the administrative discharge and ordered the applicant discharged under the provisions of paragraph 14-12b of Army Regulation 635-200 by reason of misconduct and directed issuance of a General Discharge Certificate.

13.  The applicant was discharged on 7 February 1989.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged by reason of misconduct for abuse of illegal drugs under the provisions of chapter 14, paragraph 14-12c, Army Regulation 635-200, with his service characterized as general under honorable conditions.  This form further confirms he completed 1 year, 4 months, and 9 days of creditable active military service.

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.
   a. Paragraph 14-12a states, "Minor disciplinary infractions.  A pattern of misconduct consisting solely of minor military disciplinary infractions.  If separation of a Soldier in entry level status is warranted solely by reason of minor disciplinary infractions, the action should be processed under Entry Level Status Performance and Conduct (chapter 11)."

   b.  Paragraph 14-12b states, "A pattern of misconduct.  A pattern of misconduct consisting of

(1) Discreditable involvement with civil or military authorities.

(2) Conduct prejudicial to good order and discipline.  Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army."

   c.  Paragraph 14-12c states, "Commission of a serious offense.  Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the UCMJ.  Abuse of illegal drugs is serious misconduct.  Separation action normally will be based upon commission of a serious offense.  However, relevant facts may mitigate the nature of the offense.  Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions of incidents of other misconduct and processed for separation under paragraphs 14-12a or 14-12b as appropriate."

   d.  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 request for an upgrade of his general under honorable conditions discharge was carefully considered.

2.  The evidence of record shows the applicant was counseled on numerous occasions and committed a serious offense in that he wrongfully used illegal drugs.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was accordingly discharged under the provisions of Army Regulation 635-200, chapter 14, due to his misconduct.

3.  Nevertheless, the separation authority and narrative reason for his separation is incorrectly shown on his DD Form 214.  The separation authority directed separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b and the applicant's DD Form 214 shows paragraph 14-12c.  As a matter of clarity, his DD Form 214 should be corrected to show he was separated under paragraph 14-12b and his narrative reason for separation should show "Misconduct/Conduct Prejudicial to Good Order and Discipline."

4.  His administrative separation was accomplished in compliance with applicable Error! Hyperlink reference not valid.regulations with no indication of procedural errors which would tend to jeopardize his rights.  Considering that the issuance of a discharge under other than honorable conditions is normally appropriate in such cases, his discharge under honorable conditions was highly favorable given all the facts of the case.

5.  His discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, he is not entitled to the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to show:

* item 25 (Separation Authority), "AR 635-200, PARA 14-12b"
   * item 28 (Narrative Reason for Separation), "MISCONDUCT/CONDUCT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE" 
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his general under honorable conditions discharge to an honorable discharge.



      _______ _   __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)                                         AR20120010249



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ABCMR Record of Proceedings (cont)                                         AR20120010249



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