BOARD DATE:	9 September 2014  

		DOCKET NUMBER:  AR20140000939 


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 upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states he:

* has lived with this (his discharge) hanging over his head and he would like it upgraded to a general, under honorable conditions discharge
* had two surgeries while he was on active duty and was still in therapy when the Army released him
* did the extra duty and paid the fines for the minor offenses they (the Army) had on him 
* received an honorable discharge for 3 years of service

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 December 1980.

3.  His record contains his disciplinary history which shows his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* wrongful use of marijuana between 24 October and 2 November 1983
* wrongful possession of marijuana on 30 March 1984
* failure to be at his appointed place of duty on 17 July 1985

4.  The specific facts and circumstances surrounding his discharge processing are not available for review.  However, the available evidence includes a DD Form 214 (Certificate of Release or Discharge from Active Duty) that contains the authority and reason for his discharge, which shows he was discharged on 
18 March 1986 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14-12c, for misconduct-commission of a serious offense with an under other than honorable conditions discharge.  The DD Form 214 he was issued confirms he completed a total of 5 years, 2 months, and 18 days of active service and the following immediate reenlistment this period:

* 31 December 1980 to 4 July 1983
* 5 July 1983 to 18 March 1986

5.  The applicant's record is void of any medical documents showing he underwent surgery or was in therapy prior to his release from active duty.

6.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 14 provides for separation for various types of misconduct which include drug abuse and provides that individuals identified as drug abusers may be separated prior to their normal date of expiration of term of service.  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.

   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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

	c.  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 evidence of record shows the applicant was recommended for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.

2.  Although the applicant's record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a DD Form 214 that identifies the reason and the characterization of the applicant's service.

3.  His record shows he had three Article 15s under the UCMJ.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

4.  This Board operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary the Board must presume that all actions taken by the military were proper.  There is nothing presented by the applicant or in the available records that overcomes this presumption.

5.  In view of the above, there is no basis for granting the applicant an honorable  or a general 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)                                         AR20140000939





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ABCMR Record of Proceedings (cont)                                         AR20140000939



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