IN THE CASE OF:	

		BOARD DATE:	  24 June 2014

		DOCKET NUMBER:  AR20130018725 


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 his discharge be upgraded to honorable.

2.  The applicant states that he works on government projects and he has a security clearance.  Further, he is a model citizen.

3.  The applicant provides no 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.  The applicant enlisted in the Regular Army on 31 July 1984.  He was trained in and served in military occupational specialty 11B (Infantryman).  He was subsequently assigned to Fort Ord, CA.

3.  He accepted nonjudicial punishment on 18 April and 3 June 1985 under the provisions of Article 15 Uniform Code of Military Justice (UCMJ), for wrongfully possessing and using marijuana. 

4.  On 5 August 1985, the applicant's unit commander notified the applicant he was initiating action to separate him under the provisions of paragraph 14-12c, Army Regulation 635-200 (Personnel Separations), by reason of commission of a serious offense (drug abuse).  He cited the applicant's multiple drug offenses as the basis for taking the proposed separation action.

5.  On 6 August 1985, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, its effects, of the rights available to him, and of the effect of a waiver of those rights.  He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions.  After this counseling, the applicant voluntarily waived consideration of his case by an administrative separation board and elected to not to submit a statement in his own behalf or be represented by military counsel.

6.  The separation authority approved the applicant's separation under the provisions of paragraph 14-12c, Army Regulation 635-200, and directed the issuance of a General Discharge Certificate.

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

8.  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 convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

   a.  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.

   b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests upgrade of his discharge to honorable.

2.  Evidence shows the applicant was equitably and properly discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

3.  The applicant's pattern of misconduct included two incidents of possessing and using marijuana; therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20130018725





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ABCMR Record of Proceedings (cont)                                         AR20130018725



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