IN THE CASE OF:	  

		BOARD DATE:  4 January 2013

		DOCKET NUMBER:  AR20120013089 


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 under honorable conditions discharge.
 
2.  The applicant states that his discharge was an injustice because he only had 21 days left in the service, and they were racist.  He further states that he never tested positive on a drug test and his discharge should be honorable.

3.  The applicant provides a copy of:

* a completed DD Form 214 (Certificate of Release or Discharge from Active Duty)
* copies of three Certificates of Awards
* a copy of a Police of Puerto Rico Certificate of No Penal Record

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 12 August 1980 for a period of 4 years.  He completed the required training and he was awarded military occupational specialty 19E (Armor Crewman).  The highest rank/grade he attained while serving on active duty was specialist (SP5)/E-5. 

3.  On 25 April 1984, the applicant received a Letter of Reprimand for failing a field sobriety and Personal Experience Inventory (PEI) test that was administered.

4.  His records contained a DA Form 5180-R (Test) (Urinalysis Custody and Report Record), dated 11 May 1984, that show the applicant tested positive for marijuana.    

5.  On 14 May 1984, the applicant received a DA Form 4126-R (Bar to Reenlistment Certificate), after being apprehended on 25 April 1984 in Leesville, Louisiana, for driving while intoxicated (DWI). 

6.  On 11 June 1984, the unit commander notified the applicant he was initiating separation action on him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-12(b) for misconduct.  The unit commander also cited the applicant’s DWI and positive urinalysis results as the reason for his recommendation 

7.  On 12 June 1984, the applicant consulted with legal counsel and was advised of the basis of the contemplated separation action, its effects, and of the rights available to him.  He waived his rights to be considered by an administrative separation board, personal appearance before a board of officers, consulting counsel, and representation by military counsel.  The applicant acknowledged that he understood he could encounter substantial prejudice in civilian life if he received a general discharge and submitted a statement in his own behalf.  In his statement he stated he believed he should have been separated based on expiration term of service vice being chapter out.

8.  On 12 June 1984, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct and directed that he be discharged with a General Discharge Certificate.

9.  On 20 July 1984, the applicant was discharged accordingly.  The
DD Form 214 he was issued shows he was separated under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct.  He completed a total of 3 years, 11 months, and 9 days of creditable active service.  

10.  There is no evidence showing the applicant applied to the Army Discharge Review Board for an upgrade to his discharge within that board's 15-year statute of limitations.

11.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

12.  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 applicant's contentions were carefully considered and found to be insufficient in merit.  There is no evidence and the applicant did not present any evidence which shows his discharge should be upgraded. 

2.   The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His disciplinary history includes DWI and testing positive for marijuana.  He provided a statement in his own behalf at the time, and he did not claim he did not use marijuana.




3.  By regulation, an under other than honorable conditions discharge is normally appropriate for a member separated by reason of misconduct.  Clearly, the applicant’s record of misconduct diminished his overall record of service below that meriting a fully honorable discharge.   Therefore, absent evidence of error or injustice in the discharge process, there is an insufficient evidentiary basis to support an upgrade of his 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)                                         AR20120013089





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120013089



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1