IN THE CASE OF:
BOARD DATE: 5 March 2014
DOCKET NUMBER: AR20130011822
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 that his general discharge be upgraded to a fully honorable discharge.
2. The applicant states that he was not doing drugs at all and while the situation took place in his room, he was not present. He also states the paraphernalia that was found was not his.
3. The applicant provides no additional documents with his application.
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 2 October 1990. He completed his training as a cannon crewman and was transferred to Germany for his first and only assignment.
3. The facts and circumstances surrounding his administrative discharge is not present in the available records. However, his records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was released from active duty on 28 February 1992 under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance with a general discharge. He had served 1 year, 4 months, and 29 days of active service.
4. On 6 October 1998, he was honorably discharged from the U.S. Army Reserve.
5. There is no evidence in the available records showing he applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.
6. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commanders judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions
7. 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. In the absence of evidence to the contrary, it must be presumed that the applicants administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights and that the type of discharge directed and the reasons therefore were appropriate considering the available.
2. The applicant's contentions have been considered, but without being able to review the facts and circumstances surrounding his discharge his contentions alone are not sufficiently mitigating to warrant an upgrade of his discharge.
3. In the absence of evidence showing that an error or injustice occurred in his case, there appears to be no basis to grant his request.
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) AR20130011822
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