IN THE CASE OF:	  

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120019517 


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, in effect:

	a.  his general discharge be upgraded to honorable;

	b.  his rank/pay grade be restored to specialist four (SP4)/E-4;

	c.  the Expert Marksmanship Qualification Badge with Rifle Bar be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty); and  

	d.  completion of the pre-Ranger Course be added to his DD Form 214.

2.  The applicant states:

	a.  he fully realizes the use of drugs (marijuana) was not legal and/or the correct medication for his bipolar disorder and he has since discontinued its use.

	b.  he has assisted other veterans in their struggle to remain drug free by participating in and leading Alcoholics Anonymous/Narcotics Anonymous meetings.

	c.  he counsels veterans and active duty/Reserve/Army National Guard members in the dangers of drug use and the possible outcomes of continued use as well as the benefits of a drug-free lifestyle.

	d.  he has received treatment from the Department of Veterans Affairs for drug dependency.

	e.  he has taken extraordinary measures to deal with his drug use and because of this he has achieved an associate of science degree.  

3.  The applicant provides no additional documentary evidence.

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 11 September 1984 for a period of 4 years.  He completed his training and was awarded military occupational specialty 11B (infantryman).  

3.  In January 1986, nonjudicial punishment (NJP) was imposed against him for using marijuana.

4.  He was promoted to SP4/E-4 on 1 January 1987.

5.  In February 1987, NJP was imposed against him for failing to follow instructions, failing to maintain his personal appearance and living area, and failing to secure his wall locker. 

6.  On 25 March 1987, a bar to reenlistment was imposed against the applicant.

7.  On 26 March 1987, NJP was imposed against him for possessing marijuana (two specifications).  His punishment included a reduction to private (PV2)/E-2 
(with reduction to E-1 suspended until 21 September 1987). 

8.  On 26 March 1987, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  The unit commander cited:

* his Article 15s
* his apathetic attitude
* numerous counseling statements (there are no counseling statements in the available records)
* unsatisfactory duty performance

9.  On 30 March 1987, he consulted with counsel and he acknowledged he understood he might encounter substantial prejudice in civilian life if anything other than an honorable discharge was issued.  He elected not to submit a statement in his own behalf.

10.  On 1 April 1987, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a General Discharge Certificate.

11.  On 9 April 1987, he was discharged accordingly with a general discharge.  He completed 2 years, 6 months, and 29 days of creditable active service.

12.  His DD Form 214 shows in:

* Item 4a (Grade, Rate or Rank) the entry "PV2" (private two)
* Item 4b (Pay Grade) the entry "E-2"
* Item 12h (Effective Date of Pay Grade) the entry "87  03  26" (26 March 1987)
* Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the Army Service Ribbon, Parachutist Badge, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Item 14 (Military Education) the entry "NONE/NOTHING FOLLOWS"   

13.  There are no orders for the Expert Marksmanship Qualification Badge with Rifle Bar in the available records.  There is no evidence of record which shows he qualified expert with any rifle. 

14.  Item 9 (Awards, Decorations and Campaigns) of his DA Form 2-1 (Personnel Qualification Record) shows he qualified sharpshooter with the M-16 rifle. 

15.  There is no evidence that shows he was appointed to SP4 after 
26 March 1987 and prior to his discharge.


16.  There is no evidence that shows he completed the Pre-Ranger Course.  Item 
17 (Civilian Education and Military Schools) of his DA Form 2-1 does not show he completed this school. 

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

18.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.

	a.  Chapter 13 provides for separation due to unsatisfactory performance when in the commander's judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

	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.

19.  Army Regulation 600-8-22 (Military Awards) sets forth requirements for award of basic marksmanship qualification badges.  The qualification badge is awarded to indicate the degree – Expert, Sharpshooter, and Marksman – in which an individual has qualified in a prescribed record course.  An appropriate bar is furnished to denote each weapon with which the individual has qualified.

DISCUSSION AND CONCLUSIONS:

1. The applicant's request to restore his rank to E-4 was noted.  However, there is no evidence that shows he was appointed to E-4 after 26 March 1987 and prior to his discharge.  Therefore, there is insufficient evidence on which to amend his rank. 

2.  There is no evidence of record and he did not provide any evidence that shows he qualified for or received the Expert Marksmanship Qualification Badge with Rifle Bar.  Therefore, there is insufficient evidence on which to add this marksmanship qualification badge to his DD Form 214.

3.  Since there is no evidence which shows he completed the Pre-Ranger Course, there is insufficient evidence on which to base adding this school to his DD Form 214.
 
4.  His record of service included a bar to reenlistment and three NJPs.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

5.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

6.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20120019517



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ABCMR Record of Proceedings (cont)                                         AR20120019517



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