BOARD DATE: 2 May 2013
DOCKET NUMBER: AR20120018198
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 his general discharge be upgraded to honorable.
2. The applicant states he does not believe a marital affair and all of the negative ramifications that came about should reflect the time he served proudly in the Army.
3. The applicant provides a letter, dated 16 March 2012, from the Department of Veterans Affairs that outlines his service in the Army.
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 applicants 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 applicants 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 5 August 1993 for a period of
3 years. He completed his training and was awarded military occupational specialty 11M (fighting vehicle infantryman).
3. On 30 September 1994, nonjudicial punishment (NJP) was imposed against the applicant for using marijuana.
4. On 6 July 1995, NJP was imposed against him for using marijuana on or between 9 May 1995 and 23 May 1995.
5. On 29 August 1995, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct (commission of a serious offense). The unit commander cited the applicant's wrongful use of marijuana on or between 30 May 1995 and 30 June 1995, which was the third time in one year.
6. On 29 August 1995, he consulted with counsel and waived consideration of his case by an administrative board contingent upon receiving a general discharge. He elected not to submit a statement in his behalf.
7. Discharge proceedings were initiated on 31 August 1995.
8. On 11 September 1995, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.
9. On 20 September 1995, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense) with a general discharge. He completed a total of 2 years, 1 month, and 16 days of creditable active service.
10. There is no evidence in the available record that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense. The regulation states that abuse of illegal drugs is serious misconduct. The issuance of a discharge under other than honorable conditions is normally considered appropriate.
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 contention that he does not believe a marital affair and all of the negative ramifications that came about should reflect the time he served proudly in the Army was noted. However, evidence shows he was discharged for using marijuana, not infidelity.
2. His administrative separation 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 reasons were appropriate considering all the facts of the case.
3. His record of service included two NJPs for using marijuana. As a result, his record of service did not meet the standards of acceptable conduct and performance 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) AR20120018198
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ABCMR Record of Proceedings (cont) AR20120018198
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