BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130005274 


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 honorable.

2.  The applicant states:

* he has never been in any trouble
* after six months his discharge was supposed to be changed  

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed forces of the United States).

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 23 February 1989 for a period of 4 years.  He completed his training and was awarded military occupational specialty 31K (combat signaler).  He attained the rank of specialist.

3.  In January 1991, nonjudicial punishment (NJP) was imposed against the applicant for using marijuana.

4.  In July 1991, NJP was imposed against him for altering a public record (sick slip).

5.  On 24 September 1991, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct (commission of a serious offense).  The unit commander cited the applicant's NJP for altering a public record as the basis for recommendation.

6.  He consulted with counsel and was advised of the impact of the discharge action.  He waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general under honorable conditions.  He also acknowledged that he might encounter substantial prejudice in civilian life if he were issued a general discharge.  He elected to submit a statement in his behalf.  In summary, he stated:

* he was pending separation from the Army because he used marijuana and he altered a public record
* he was promoted to specialist in less than 12 months in the Army
* he was awarded the Army Commendation Medal
* based on his record and job performance he would like to be separated with an honorable discharge
* he does not want the stigma of a general discharge when seeking employment

7.  On 26 September 1991, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

8.  On 9 October 1991, he was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense).  He completed a total of 2 years, 7 months, and 17 days of creditable active service.

9.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  The regulation states that abuse of illegal drugs is serious misconduct.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

	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.

11.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge, or both, was improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he has never been in any trouble.  However, good post-service conduct alone is not a basis for upgrading a discharge.

2.  He also contends after six months his discharge was supposed to be changed; however, a discharge upgrade is not automatic.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.



4.  His record of service included two NJPs, one for using marijuana and one for altering a public record.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

5.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20130005274



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ABCMR Record of Proceedings (cont)                                         AR20130005274



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