IN THE CASE OF:	   

		BOARD DATE:	  11 July 2013

		DOCKET NUMBER:  AR20120021990 


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 other than honorable conditions discharge.

2.  The applicant states:

* he had a job opportunity in New Jersey so he agreed to an expedited discharge at the time
* he did not realize he would receive an under other than honorable conditions characterization of service
* he performed well and he only had minor run-ins

3.  The applicant provides a Department of the Veterans Affairs (VA) Form 21-526b (Veterans Supplemental Form).

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's records show he enlisted in the Regular Army on 29 July 1994 and he held military occupational specialty 11M (Fighting Vehicle Infantryman).  The highest rank/grade he attained was private first class/E-3.

3.  He was awarded or authorized the National Defense Service Medal, Army Service Ribbon, and Sharpshooter Marksmanship Qualification Badge with Grenade and Rifle Bars.  He was assigned to the 2nd Battalion, 12th Infantry, Fort Carson, CO

4.  On 3 May 1995, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful toward a noncommissioned officer (NCO).

5.  On 28 July 1995, he participated in a unit urinalysis and his urine sample tested positive for marijuana.  

6.  On 26 September 1995, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana. 

7.  On 20 February 1996, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) for misconduct - commission of a serious offense.  The specific reasons are cited as the wrongful use of marijuana, disobeying a lawful order, breaking restriction, failure to report, and disrespect toward an NCO.  He recommended an under other than honorable conditions discharge.

8.  The applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation 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 that were available to him.  He waived consideration of his case by a separation board and/or a personal appearance before a separation board and he elected not to submit a statement on his own behalf.  He acknowledged he understood that:

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

9.  Subsequent to his acknowledgement, the applicant’s immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct.   The immediate commander further recommended an under other than honorable conditions discharge.  His intermediate and senior commanders recommended approval of the discharge action. 

10.  On 9 April 1996, consistent with the chain of command's recommendation, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense and directed the applicant be given an under other than honorable conditions discharge.  On 17 April 1996, the applicant was accordingly discharged.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 with a character of service of under other than honorable conditions.   This form further shows that the applicant completed 1 year, 8 months, and 19 days of creditable active military service.

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions; a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities; and desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  

	a.  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. 

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed a serious offense in that he wrongfully used illegal drugs.  As such, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

2.  Contrary to his argument that he did not realize he would receive an under other than honorable conditions characterization of service, the evidence of record shows when his immediate commander notified him of the separation action, the commander clearly indicated he was recommending an under other than honorable conditions discharge.  

3.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  His actions at the time clearly brought discredit upon himself and the Army.  Based on his record of misconduct his service was unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20120021990





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ABCMR Record of Proceedings (cont)                                         AR20120021990



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