IN THE CASE OF

		BOARD DATE:	    20 December 2012

		DOCKET NUMBER:  AR20120012684 


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.  He states he believes he has suffered long enough.  Besides, his misconduct occurred when he was in the Army.  He was a good Soldier who received three awards of the Army Achievement Medal (AAM) and was promoted to pay grade E-4 faster than anybody in his company.  He is a good citizen who has never committed any misdemeanor or felony crimes.  He is a saved man, a husband of 18 years, and father of two children.  It has been more than 15 years and he was not aware he could request an upgrade of his discharge.  He is in the process of looking for work and feels his general discharge hinders future employment.

3.  The applicant provides:

* two AAM Certificates
* DA Form 638-1 (Recommendation for Award (Other Than Valor) of AAM, Army Commendation Medal, and Meritorious Service Medal)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Institute of Technology Diploma and eight certificates
* DD Form 293 (Application for the 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's military records show he enlisted in the Regular Army in pay grade E-1 on 7 April 1994 for 3 years.  He completed training and he was awarded military occupational specialty 11C (Indirect Fire Infantryman).

3.  His record shows the highest grade he attained was pay grade E-4; however, the date of this promotion is not reflected in his records.

4.  A Report of Mental Status Evaluation, dated 11 April 1995, shows the applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented, his mood or affect was unremarkable, his thinking process clear, his thought content was normal, and his memory was good.  The evaluating psychiatrist, an Army Medical Corps officer, found the applicant to be mentally responsible and considered him to have the mental capacity to understand and participate in separation proceedings.

5.  In a memorandum for record, dated 1 December 1995, the applicant's company commander stated the applicant was pending separation proceedings under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for illegal use of drugs.

6.  On 21 December 1995, the applicant's company commander notified the applicant that he was initiating action to separate him due to his commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 
14-12c, for illegal use of drugs.  The applicant's company commander recommended a general discharge.  He advised the applicant of his rights.

7.  On 29 December 1995 after consulting with counsel, the applicant acknowledged receipt of the contemplated action to separate him for commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c.  He also acknowledged he understood he could receive a general discharge and the effects of such a discharge in civilian life.  He waived his rights and elected not to submit a statement in his own behalf.

8.  On 29 December 1995, the applicant's battalion commander recommended his separation from the service under the provisions of Army Regulation 635-200, paragraph 14-12c.

9.  On 29 December 1995, the appropriate authority approved the applicant's discharge and directed the issuance of a General Discharge Certificate.

10.  On 16 January 1996, he was discharged under honorable conditions (general) in pay grade E-1 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.  He completed 1 year, 9 months, and 10 days of net active service with no lost time.

11.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  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.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  The separation authority may direct a general discharge if such is merited by the Soldier's overall record.

13.  Army Regulation 635-200, paragraph 3-7a, states 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 shows separation processing was initiated against the applicant in December 1995 for illegal use of drugs.  The separation authority approved his discharge and he was discharged accordingly on 16 January 1996.

2.  There is no evidence of record and he provided insufficient evidence to show he was innocent of the offense.  Upon notification of his pending separation and after consulting with counsel, he acknowledged he understood the basis for the contemplated separation action and its effects.  He waived his rights and he elected not to make a statement.

3.  It appears that based on his overall service record, the discharge authority directed the issuance of a general discharge, as the characterization of service for this type of discharge was normally under other than honorable conditions.

4.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge and he has submitted neither probative evidence nor a convincing argument that shows his general discharge was inequitable.  He was properly separated for misconduct.

5.  In the absence of evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

6.  His desire to have his discharge upgraded so he can qualify for future employment is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of qualifying an applicant for employment.

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 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)                                         AR20120012684



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ABCMR Record of Proceedings (cont)                                         AR20120012684



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