BOARD DATE: 13 December 2012
DOCKET NUMBER: AR20120011463
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 under other than honorable conditions discharge to an honorable discharge.
2. The applicant states:
* he made the biggest mistake of his life while assigned to Germany by experimenting with marijuana brownies; as a result, he was discharged from the Army with an under other than honorable conditions discharge
* he regrets his actions and realizes how wrong his actions were
* he feels his punishment does not fit the crime
3. The applicant provides as self-authored letter and a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) in support of 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 Regular Army (RA) on 10 August 1989. He served in military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).
3. On 1 August 1991, he was promoted to the rank/grade of specialist (SPC)/
E-4) and this was the highest rank he held. His record also shows he was reduced to private first class (PFC)/E-3 on 10 March 1995.
4. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows the applicant was discharged on 29 January 1996 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct, with an under other than honorable conditions discharge. He completed 6 years, 5 months, and 20 days of creditable active service.
5. There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. 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 is clearly established that rehabilitation is impracticable or is unlikely to succeed. An under other than honorable conditions discharge is normally appropriate.
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.
c. 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 request for upgrade of his under other than honorable condition discharge to an honorable discharge was carefully considered; however, there is insufficient evidence to support this claim.
2. His record is void of the specific facts and circumstances surrounding the applicant's discharge processing. However, his record contains a DD Form 214 that identifies the reason and characterization of the applicant's discharge. This document carries with it a presumption of government regularity in the discharge process.
3. In the absence of evidence to the contrary, it is concluded his separation processing was accomplished in accordance with the applicable regulation and that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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.
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