IN THE CASE OF: 

		BOARD DATE:	  28 January 2014

		DOCKET NUMBER:  AR20130018919 


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 general discharge be upgraded to honorable.  Additionally, he requests a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  He states he lost his DD Form 214 and is now incarcerated.

3.  He does not provide any 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 requested a copy of his DD Form 214.  A copy of this document will be provided to the applicant by separate correspondence and as a result, it will not be discussed further in this Record of Proceedings.

3.  After having prior service in the Army National Guard, on 1 April 1994, the applicant enlisted in the Regular Army.

4.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on 29 May 1996 for wrongfully using marijuana between 10 April and 10 May 1996.

5.  On 12 July 1996, the unit commander notified the applicant he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c.  Specifically, the commander said the applicant's wrongful use of marijuana which led to a field grade Article 15 was the basis for the discharge action.

6.  On 12 July 1996, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action and its effects and the rights available to him, he elected not to submit a statement in his behalf.  He acknowledged that he understood that he could encounter substantial prejudice in civilian life if a general discharge was issued to him.  He further acknowledged that he understood if he received a character of service which was less than honorable he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge.  However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  He also understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

7.  On 30 July 1996, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c and directed the issuance of a General Discharge Certificate.

8.  His DD Form 214 shows he was discharged under honorable conditions on 
28 August 1996 by reason of misconduct under the provisions of Army Regulation 635-200, chapter 14.  He was credited with completing 2 years, 4 months, and 28 days of active service.

9.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.


10.  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.  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.  

11.  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.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.

2.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to 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)                                         AR20130018919





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ABCMR Record of Proceedings (cont)                                         AR20130018919



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