IN THE CASE OF:	  

		BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120011124 


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 discharge to an honorable discharge. 

2.  The applicant states, after some research, he realized his general discharge could be changed to an honorable discharge if there were no discrepancies or infractions for 6 months after the discharge.

3.  The applicant provides no additional evidence.

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's records show he enlisted in the Regular Army on 15 July 1983 and he held military occupational specialty 94B (Food Service Specialist).  He was assigned to Company B, 426th Signal Battalion, Fort Bragg, NC, on 26 February 1984.

3.  Between 20 April and 3 November 1984, he was frequently counseled by various members of his chain of command for repeatedly failing to report to his appointed place of duty at the prescribed time, writing at least four bad checks, and failing to follow instructions (to maintain a telephone at his off-post residence).

4.  On 23 July 1984, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty at the prescribed time on six separate occasions from 5 to 17 July 1984.

5.  On 8 November 1984, he received NJP under the provisions of Article 15, UCMJ, for wrongfully using marijuana between 23 September and 2 October 1984.

6.  On 20 November 1984, he was notified by his immediate commander that separation action was being initiated against him under the provisions of
Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct - abuse of illegal drugs.  Specifically, he cited the applicant's positive test for marijuana and that he was recommending the applicant receive a General Discharge Certificate.  The commander also advised him of the procedures and rights that were available to him.  

7.  On 28 November 1984, the applicant acknowledged receipt of the discharge action, declined to consult with legal counsel, and declined to submit a statement in his own behalf.

8.  On 12 December 1984, the applicant’s immediate commander recommended he be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - abuse of illegal drugs, with a general discharge.  The commander stated the applicant tested positive for marijuana on a unit drug test which constituted serious misconduct.  The applicant's performance prior to the drug test was poor; he had been counseled frequently for repeatedly failing to report for duty on time and writing at least four bad checks.  His commander further stated that on 23 July 1984, he (the applicant) received NJP for failing to go to report for duty on time on six occasions and still failed to report on time the day after receiving NJP.  The applicant had demonstrated his inability to accept responsibility for his own actions and had no potential for continued service.

9.  On 18 December 1984, his senior commander recommended approval of his separation action with a general discharge.

10.  The separation authority subsequently approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - abuse of illegal drugs with the issuance of a General Discharge Certificate.  On 6 February 1985, he was discharged accordingly.

11.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - drug abuse, with an under honorable conditions characterization of service.  He completed 1 year, 6 months, and 22 days of net active service.

12.  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.

13.  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 abuse of illegal drugs.  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 was merited by the Soldier's overall record.

14.  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 evidence of record confirms the applicant engaged in a pattern of misconduct.  He demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the numerous times he was counseled for repeatedly failing to report to his place of duty at the prescribed time and he received NJP for failing to report to his place of duty at the prescribed time on six separate occasions.  He subsequently committed a serious offense and received NJP for wrongfully using marijuana.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action 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 reason for discharge were appropriate considering all the facts of the case.

3.  The ABCMR does not grant requests for an upgrade of a discharge based on no record of infractions for 6 months after the discharge.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  Based on his record of misconduct, the applicant's clearly did not meet the standards of acceptable conduct 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)                                         AR20120011124





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ABCMR Record of Proceedings (cont)                                         AR20120011124



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