IN THE CASE OF:	  

		BOARD DATE:	  1 July 2014

		DOCKET NUMBER:  AR20130018672 


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 was young, immature, and his infractions were neither serious nor criminal.  He is a positive contributor to the community and would like this blemish removed so he can receive additional benefits and possibly reenter the military.

3.  The applicant provides four certificates, a transcript, a résumé, and a letter announcing completion of all On-Line Tech Math Course materials.

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 4 April 1996 when he was 18 years, 9 months, and 18 days of age.  On 6 December 1996, he was assigned to the 64th Support Battalion, Fort Carson, CO.

3.  On 13 January 1998, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between 11 August and 11 September 1997.

4.  On 10 April 1998, he received NJP under the provisions of Article 15, UCMJ, for one specification each of:

* wrongfully operating a vehicle while under the influence of alcohol
* failing to obey a lawful regulation on 21 March 1998 by wrongfully consuming alcohol while under the age of 21
* failing to obey a lawful regulation on 2 April 1998 by wrongfully consuming alcohol while under the age of 21

5.  On 5 May 1998, his immediate commander notified him of his intent to initiate separation action against him for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for the commission of a serious offense.  Specifically, he cited the applicant's record of driving while under the influence of alcohol, violating a lawful regulation twice by consuming alcohol while under the age of 21, and wrongfully using marijuana.  He also stated he was recommending his receipt of a discharge under other than honorable conditions.

6.  On 5 May 1998, he acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  He subsequently waived his right to have his case heard by an administrative separation board with the condition that he receives a general discharge.

7.  On 6 May 1998, his senior commander recommended approval of the separation action and recommended his discharge under other than honorable conditions.

8.  On 8 May 1998, the separation authority approved the applicant's separation and directed the issuance of a General Discharge Certificate.  On 18 May 1998, he was discharged accordingly.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct with his service characterized as under honorable conditions (general).

10.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  The applicant provided four certificates and a letter that show he:

* was awarded an Associate of Applied Science Degree in Computer Information Systems on 17 July 2000
* satisfactorily completed a course in Advanced Locksmithing on 15 November 2005
* completed the Electrician Program on 19 August 2009
* successfully completed Job Readiness Training on 11 May 2012
* successfully completed the National Joint Apprenticeship and Training Committee for the Electrical Industry On-Line Tech Math Course

12.  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, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitled 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 was otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant received NJP for wrongfully using marijuana, driving while intoxicated, and for drinking on at least two occasions while under the age of 21.  Although the applicant may think these are not serious or criminal offenses, he is mistaken.  These offenses are Federal offenses, against military laws/regulations, and punishable in both civil and military courts.  Accordingly, his immediate commander initiated separation action against him for misconduct.

2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The applicant contends that his discharge should be upgraded because he was young and immature at the time of his service.  Records show he was nearly 21 years of age at the time of his offenses.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service.

4.  Based on his overall record, it is clear the applicant's service did not meet the standards of acceptable conduct for Army personnel that would merit an honorable discharge.

5.  In view of the foregoing, he is not entitled to 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)                                         AR20130018672



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ABCMR Record of Proceedings (cont)                                         AR20130018672



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