IN THE CASE OF:	  

		BOARD DATE:  22 October 2013

		DOCKET NUMBER:  AR20130004436 


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 (GD) under honorable conditions to an honorable discharge (HD).

2.  The applicant states he believes his record is unjust because it has been more than 20 years since he was discharged from the Army.

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's records show he enlisted in the Regular Army on 10 January 1989.  He was trained in and awarded military occupational specialty 62B (Construction Equipment Operator).

3.  The applicant's records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice twice for wrongful use of marijuana between 3 and 13 February 1992 and 17 February and 17 March 1992, both detected in positive urinalysis biochemical testing.

4.  On 31 March 1992, the applicant underwent a mental status evaluation and the results showed he demonstrated:

* normal behavior and thought content
* he was fully alert and oriented
* a flat mood or affect
* a clear thinking process
* good memory
* he had the mental capacity to understand and participate in separation proceedings
* he was mentally responsible

5.  On 22 July 1992, the applicant's commander informed him of his intent to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for patterns of misconduct. 
The commander cited the applicant's two urine specimens submitted to military authorities on 13 February 1992 and 17 March 1992 which later tested positive for the use of marijuana as the basis for his recommended elimination action.  The commander informed the applicant of his right to consult with legal counsel, to obtain copies of documents pertaining to the separation action, to request a hearing before an administrative board (if accrued 6 or more years of active or Reserve service), to be represented by either or both military and civilian counsel, to waive his rights, and/or to submit a request for a conditional waiver of any rights.

6.  On 22 July 1992, the applicant consulted with legal counsel.  After being advised of the basis for the contemplated separation action, its effects, and the rights available to him, he:

* waived consideration of his case by an administrative separation board
* waived consideration of and personal appearance before an administrative separation board (board of officers)
* waived representation by counsel
* declined to submit any statements in his own behalf

7.  On 27 July 1992, the separation authority waived further counseling and rehabilitative requirements for the applicant, approved the administrative separation action, and directed the issuance of a GD.  On 5 August 1992, the applicant was discharged accordingly.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 
635-200, paragraph 14-12b, by reason of "misconduct – pattern of misconduct."  It also shows he completed 3 years, 6 months, and 27 days of creditable active service.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, convictions by civil authorities, desertion or absence without leave.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  The separation authority may issue an HD or GD if warranted by the overall record of service; however, a discharge under other than honorable conditions (UOTHC) is normally considered appropriate for members separated under these provisions of the regulation.

11.  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 contends that his GD should be upgraded to an HD because it has been more than 20 years since his discharge.  The passage of time is not adequate justification for upgrading his character of service.  Such changes may be warranted if the Board determines the character of service or the reason for discharge, or both, was improper or inequitable.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  His overall record of service was considered and resulted in the issuance of a GD instead of the discharge UOTHC that is normally appropriate for members separated for misconduct.  The applicant's disciplinary history clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  Accordingly, there is no basis upon which to grant the requested relief.

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 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)                                         AR20130004436



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ABCMR Record of Proceedings (cont)                                         AR20130004436



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