IN THE CASE OF: 

		BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20130019402 


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 under honorable conditions (general) discharge. 

2.  The applicant states he is requesting the upgrade due to life-changing ways and abstinence for any said reasons.  He has recovered himself in a manner of self-discipline and he has also been a small business owner for 13 years now. 

3.  The applicant does not provide any 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 (RA) on 24 October 1985 and he held military occupational specialty 67U (Medium Helicopter Repairer). 
3.  He served in Germany from 16 May 1986 to on or about 22 May 1989 and he attained the rank/grade of specialist four/E-4.  He was awarded the Army Service Ribbon, Overseas Service Ribbon, Aircraft Crewmember Badge, Marksman Marksmanship Qualification Badge with Rifle Bar, and Sharpshooter Marksmanship Qualification Badge with Grenade Bar. 

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: 

* 3 December 1986, wrongfully using marijuana
* 16 December 1986, missing formation
* 6 January 1987, failing to go at the time prescribed to his appointed place of duty

5.  His records contain a history of negative counseling for various infractions including:

* an extensive history of failing to repair
* being absent from formations
* being late to work
* unauthorized absence 
* disobeying orders

6.  On 15 February 1989, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his continued misconduct, unsatisfactory performance, and negative counseling.  He was provided with a copy of this bar but he elected not to submit a statement on his own behalf.  The bar was ultimately approved by the approval authority. 

7.  On 1 April 1989, he was apprehended for wrongfully possessing a controlled substance (marijuana).  He attempted to enter Germany from the Netherlands in a vehicle with approximately 14 grams of marijuana tied up in a condom and located in his shoe.  The drugs were seized and he was turned over to military police.  

8.  On 4 May 1989, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph  14-12a, for misconduct - commission of a serious offense, wrongful possession of marijuana.  The immediate commander also notified him that he intended to recommend his service be characterized as honorable or general, under honorable conditions. 

9.  On 4 May 1989, the applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a separation board and a personal appearance before a separation board andt he elected not to submit a statement in his own behalf.  He further indicated that he understood:

	a.  He could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

	b.  He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

10.  On 15 May 1989, the applicant's immediate commander formally initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12b, for misconduct - commission of a serious offense.  He recommended an under honorable conditions (general) discharge. 

11.  The applicant's intermediate commander recommended approval of the separation with the issuance of an under honorable conditions discharge.

12.  On 18 May 1989, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense and directed his service be characterized as under honorable conditions (general).  On 23 May 1989, the applicant was discharged accordingly.

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense with a character of service of under honorable conditions.  This form further confirms he completed 3 years, 6 months, and 30 days of active service.

14.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.  

	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 evidence of record shows the applicant committed a serious offense of wrongfully possessing marijuana.   Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

2.  An 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.  The applicant's record contains an extensive history of negative counseling, a bar to reenlistment, and multiple instances of NJP.  

3.  Based on the applicant’s record of multiple acts of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is insufficient basis for granting the applicant's 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 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)                                         AR20130019402





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ABCMR Record of Proceedings (cont)                                         AR20130019402



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