IN THE CASE OF:
BOARD DATE: 7 February 2013
DOCKET NUMBER: AR20120012791
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 discharge.
2. The applicant states he and his commander didn't get along. He was supposed to get time to clean himself up when he failed a drug test, but the commander ordered another test the next day. The commander continued to berate him and make things difficult. His discharge should be upgraded because he tried so hard and wanted to stay in the Army.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 6 July 1988. He completed training, including basic airborne training, and was awarded military occupational specialty 43E1P (parachute rigger parachutist).
3. He was absent without leave (AWOL) on 3 October 1989; dropped from the rolls as a deserter on 2 November 1989; apprehended by civilian authorities on 11 March 1990; and returned to Fort Bragg, North Carolina, on 13 March 1990.
4. The discharge package is not contained in the available record. Undated charges were prepared for:
* using marijuana sometime between 13 and 23 January 1989
* using cocaine sometime between 13 and 16 March 1989
* being absent from his appointed place of duty on 21 August 1989
* using marijuana sometime between 1 and 11 September 1989
* being AWOL from 3 October 1989
5. The applicant was on excess leave when he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:
a. 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.
b. Paragraph 3-7b states 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.
c. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-
martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
7. Army Regulation 15-185 (Army Board for Correction of Military Records) provides the policy and procedures for the ABCMR. Paragraph 2-9 provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.
2. It is not clear what instance of illegal drug use the applicant refers to, but the evidence of record shows he had three instances of illegal drug use.
3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.
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) AR20120012791
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ABCMR Record of Proceedings (cont) AR20120012791
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