IN THE CASE OF:	  

		BOARD DATE:  14 November 2013

		DOCKET NUMBER:  AR20130004992 


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 does not provide any contentions.

3.  The applicant does not provide any 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.  On 7 July 1983, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 94B (Food Service Specialist).

3.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 23 August 1985, shows the applicant's immediate commander recommended a bar to reenlistment be placed in his records due to a driving under the influence (DUI) incident occurring on 1 August 1985.  The form also shows the applicant was fined $400 and confined for 3 days.

4.  On 26 August 1985, the applicant's bar to reenlistment was approved.  He acknowledged receipt of the action and elected not to appeal the bar to his reenlistment.

5.  On 18 September 1985, the applicant was reprimanded by the Assistant Division Commander, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, KY, for his civilian DUI conviction.

6.  On 3 October 1985, the applicant acknowledged receipt of the General Officer Memorandum of Reprimand and elected not to submit statements in his own behalf.

7.  On 10 December 1985, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for disobeying a lawful order.

8.  A DA Form 2496 (Disposition Form), undated, shows that on 4 January 1986 the applicant found another Soldier's unsecured camera and later pawned it.

9.  A DA Form 4430 (Department of the Army Report of Result of Trial), dated 28 February 1986, shows the applicant was found guilty of larceny by a special court-martial.  He was sentenced to reduction to the rank/grade of private/E-1, received a forfeiture of $300 pay for 3 months, and confinement for 3 months.

10.  A DA Form 2496, dated 14 March 1986, shows the applicant tested positive for marijuana.

11.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 12 May 1986, shows the applicant was cleared for any administrative action deemed appropriate by his command.

12.  On 21 May 1986, the applicant's commander informed him she was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for commission of a serious offense – illegal drug abuse.  His commander stated, in effect, the proposed action was based on his receipt of a DUI, Article 15, court-martial, and positive urinalysis.  His commander informed him she was recommending he receive a general discharge.

13.  On the same date, the applicant acknowledged he had been advised of the basis for the contemplated action to separate him.  He consulted with counsel and elected to submit statements in his own behalf.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

14.  On 19 June 1986, the separation authority approved the applicant's separation and directed the issuance of a General Discharge Certificate.  His DD Form 214 shows he was discharged in accordance with the separation authority's directive on 24 June 1986.  He completed 2 years, 9 months, and 11 days of active military service.

15.  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.

16.  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.  The issuance of a discharge under other than honorable conditions is normally considered appropriate for discharges under the provisions of this authority.

	a.  Paragraph 14-12c provides that a member may be separated for commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial.

	b.  Paragraph 14-12c(2) provides that abuse of illegal drugs is serious misconduct.  The version of the regulation in effect at the time stated that individuals identified as drug abusers could be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above were required to be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could also be processed after a first drug offense and were required to be processed for separation after a second offense.  

	c.  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 evidence of record does not support the applicant's request for an upgrade of the character of his service to honorable.

2.  His actions at the time clearly brought discredit upon himself and the Army.  Although an under other than honorable conditions discharge was normally appropriate based on the authority and reason for his discharge, it appears his chain of command and separation authority took into consideration his overall record of service and directed the issuance of a general discharge.

3.  In view of the foregoing, 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 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)                                         AR20130004992



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ABCMR Record of Proceedings (cont)                                         AR20130004992



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