IN THE CASE OF:	  

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120019787 


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 (under honorable conditions) discharge.

2.  The applicant states:

* he was a decorated top-notch Soldier who had more awards commendations, medals, and points than his first sergeant, who had 13 years of service
* he lost his drive and respect for the U.S. Army when he was given an Article 15 and lost his sergeant stripe due to a failed urinalysis
* he states there was no injustice and he does not want anything from the U.S. Army except an honorable discharge
* he was truthful and disclosed the fact he smoked marijuana on his enlistment application and it was not a problem
* he questions why after 3 1/2 years of hard work and dedicated service it was a problem
* he has obtained a drafting technologies degree and mechanical engineers degree since discharge
* he has raised two daughters who are presently in college
* he has worked for a medium-sized architectural firm for the past 8 years and he currently holds the title Associate Information Technology/ Computer-Aided Design and Drafting (one step below Principal)
* he has continued to learn, adapt, and overcome any obstacle he has faced since leaving the military

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2166-6 (Enlisted Evaluation Report)

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 U.S. Army Reserve (USAR) Delayed Enlistment Program (DEP) for a 6-year period on 22 January 1981.  On 3 March 1981, he was discharged from the DEP and enlisted in the Regular Army on 4 March 1981 for a 3-year period.  On 4 March 1984, he reenlisted.

3.  The applicant was punished under Article 15, Uniform Code of Military Justice, on the following occasions:

* on 4 October 1984, for drunk and disorderly conduct and wrongfully engaging in a fist fight in the unit area
* on 15 November 1984, for wrongfully using marijuana between about 29 August 1984 and 7 September 1984

4.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 20 November 1984, shows the applicant was found to be mentally responsible and had the mental capacity to understand and participate in proceedings.

5.  On 18 December 1984, the applicant's immediate commander requested a waiver of the requirement of rehabilitative transfer and indicated that the applicant's performance had been unsatisfactory and he demonstrated a flagrant disregard for authority.  Further, he required constant supervision to accomplish the simplest of tasks.
6.  On 18 December 1984, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12a of Army Regulation 635-200 (Enlisted Separations) for misconduct - minor disciplinary infractions and drug abuse.  He notified him he was recommending a general discharge.

7.  The applicant acknowledged notification of the commander's intent to recommend his separation.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He also elected not to submit statements on his own behalf.  In his acknowledgement, he indicated he:

* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws

8.  On 18 December 1984, the separation authority approved the request to waive rehabilitative transfer; ordered that the applicant be discharged under the provisions of paragraph 14-12a, Army Regulation 635-200, by reason of misconduct – drug abuse; and directed issuance of a General Discharge Certificate.

9.  On 15 January 1985, the applicant was discharged in accordance with the separation authority's decision.  His DD Form 214 shows he completed 3 years, 10 months, and 12 days of creditable active military service.  

10.  The applicant provides a copy of his DD Form 214, a DD Form 293, and an unsigned copy of his enlisted evaluation report for the period April 1984 through June 1984.  His enlisted evaluation report shows he received favorable ratings for a 3-month period.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  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.  Action will be taken to separate a member for misconduct when it was 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.

   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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his general under honorable conditions discharge was carefully considered.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with the applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

3.  Although the applicant received an enlisted evaluation report with favorable ratings for a 3-month period, this does not mitigate his misconduct.  Based on his record of indiscipline, his service clearly 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)                                         AR20120019787



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ABCMR Record of Proceedings (cont)                                         AR20120019787



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