IN THE CASE OF:
BOARD DATE: 11 June 2013
DOCKET NUMBER: AR20120020479
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 discharge to an honorable discharge.
2. The applicant states the type of discharge he received is limiting his ability to compete for better jobs.
3. The applicant provides no additional 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 9 March 1983 in pay grade E-1. He completed training as a combat signaler. He remained on active duty through continuous reenlistments and extensions. He was promoted through the ranks to sergeant (E-5).
3. On 31 December 1992, the applicant accepted nonjudicial punishment (NJP) for using marijuana.
4. On 15 January 1993, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 14, for commission of a serious offense.
5. He acknowledged receipt of the notification on 8 February 1993. After consulting with counsel, he waived his right to consideration of his case before a board of officers.
6. The appropriate authority approved the recommendation for discharge on 13 April 1993 and directed the issuance of a general discharge. On 4 May 1993, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-12c, due to misconduct commission of a serious offense. He completed 10 years, 1 month, and 26 days of net active service this period. He received a General Discharge Certificate.
7. The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense. The issuance of a discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.
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 contentions have been noted.
2. His records show he was notified he was being discharged for misconduct commission of a serious offense after he tested positive for marijuana. He acknowledged receipt of the notification. According to the applicable regulation, a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, he was issued a general discharge based on his overall record of service.
3. The applicant's claims concerning his employment are noted. However, his ability to compete for a better job is not a proper basis to upgrade his discharge.
4. In view of the foregoing, the applicant's request should be denied.
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) AR20120020479
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ABCMR Record of Proceedings (cont) AR20120020479
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