BOARD DATE: 26 February 2014
DOCKET NUMBER: AR20130010623
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.
2. The applicant states:
* he does not believe his discharge is an error or unjust
* drugs were found in his system
* he is asking for mercy
3. The applicant provides no additional documentary 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 10 April 1979 for a period of
3 years. He completed his training and was awarded military occupational specialty 12F (engineer tracked vehicle crewman). On 5 May 1982, he was honorably discharged for immediate reenlistment. He reenlisted on 6 May 1982 for a period of 6 years. He attained the rank of sergeant on 6 August 1982.
3. On 2 April 1986, he was convicted by a summary court-martial of using marijuana. His sentence included a reduction to specialist four, forfeiture of $634.00 pay per month for 1 month, and restriction for 45 days.
4. On 8 May 1986, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct (abuse of illegal drugs). The unit commander cited the applicant's summary court-martial for using marijuana.
5. He consulted with counsel, waived consideration of his case by an administrative board, and acknowledged that he might encounter substantial prejudice in civilian life if he were issued a general discharge. He elected not to submit a statement in his behalf.
6. The separation authority approved the recommendation for discharge and directed the issuance of a general discharge.
7. On 19 June 1986, he was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (drug abuse). He completed a total of 7 years, 2 months, and 10 days of creditable active service.
8. 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.
9. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. He had an opportunity to submit a statement wherein he could have voiced any concerns; however, he elected not to do so.
2. The type of discharge directed and the reasons were appropriate considering all the facts of the case.
3. His record of service included one summary court-martial for using marijuana. 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.
4. 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) AR20130010623
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