IN THE CASE OF:	

		BOARD DATE:	  28 October 2014

		DOCKET NUMBER:  AR20140005263 


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 that his general, under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states he was in the second month of his reenlistment when he had a night out on the town with several members of his company.  He had never done anything wrong prior to that time.  He smoked marijuana and had a few drinks with his fellow service members; all of this occurred off-base.  The next morning he was asked to submit to a urinalysis test.  He tested positive and was told he would be quietly discharged from the service.  He was also told his discharge would be upgraded to honorable after 6 months, based on his first enlistment; however, it was never upgraded as he was led to believe.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter of support, dated 4 March 2014.

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.  On 28 September 1982, the applicant enlisted in the Regular Army.  He completed his initial training as a nuclear, biological, and chemical specialist.

3.  On 14 April 1985, he was promoted to the rank/grade of specialist five/E-5.

4.  On 1 May 1985, he reenlisted in the Regular Army.

5.  On 6 September 1985, at a mental status evaluation, his behavior was found to be normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness and he was considered mentally responsible and capable of participating in separation processing.

6.  On 12 September 1985, he was notified that his privilege to operate a privately-owned motor vehicle on the installation was temporarily suspended pending the outcome of a charge in the U.S. Magistrate Court for driving while intoxicated.

7.  On 25 September 1985, the applicant's commander notified the applicant that separation actions were being initiating against him to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, due to the commission of a serious offense, to wit, his illegal drug abuse and driving under the influence.

8.  On 27 September 1985, the applicant consulted with counsel concerning his rights.  He indicated that a statement was submitted but it was not available for review.

9.  The applicant's commander recommended his discharge for misconduct and waiver of the rehabilitation transfer.

10.  On 9 October 1985, the appropriate authority approved his commander's recommendation that he be discharged and directed that he be issued a general, under honorable conditions discharge.  Accordingly, on 16 October 1985, the applicant was discharged under honorable conditions after completing 3 years and 19 days of creditable active duty service.

11.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.
12.  The applicant provided a letter of support from a friend who states he is an honest man with a kind nature.  He always lends a hand to his neighbors and he has never seen him (the applicant) angry or raise his hand to anyone.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include the commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  The misconduct is considered a commission of a serious military or civil offense when the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice (UCMJ).

	c.  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.

14.  Under the UCMJ, the maximum punishment allowed for the wrongful use of marijuana is a punitive discharge and confinement for 5 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general, under honorable conditions discharge should be upgraded to an honorable discharge because he was told his discharge would be upgraded to honorable after 6 months, based on his first enlistment.

2.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

3.  The evidence shows his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  His record of service is greatly diminished by his commission of a serious crime, for which he was fortunate to have only received an administrative separation.  He has not provided convincing evidence or a sufficiently mitigating argument to warrant an upgrade of his discharge.  Accordingly, there is an insufficient basis to grant the 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)                                         AR20140005263





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140005263



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1