IN THE CASE OF:  	  

		BOARD DATE:  3 December 2014	  

		DOCKET NUMBER:  AR20140006098 


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 general under honorable conditions discharge to an honorable discharge.  

2.  The applicant states:

* he realized what he did was wrong, but he was 19 years old at the time
* he performed extra duty and received a reduction in rank
* he didn't realize that accepting a general discharge would affect the rest of his life
* he couldn't adjust to stateside duty when he returned from overseas
* his record of promotions showed he was generally a good service member

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* Urinalysis Custody and Report Record
* Memorandum for Record
* DA Form 4856 (General Counseling)

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's service record shows he was born on 10 June 1971.  He enlisted in the Regular Army on 7 March 1990 at the age of 18.  The highest rank/pay grade he attained while on active duty was private first class (PFC)/E-3.  However, at the time of his separation he held the rank/pay grade of private (PV2)/E-2.

3.  His DA Form 2-1 (Personnel Qualification Record - Part II) shows he served in Korea from 2 July 1990 to 31 July 1991.

4.  His service record shows he tested positive for marijuana on 1 June 1992.  He accepted nonjudicial punishment under the provisions of Article 15 on 15 July 1992 for this offense.  His Record of Proceedings Under Article 15, UCMJ shows his punishment consisted of reduction to the rank/pay grade of PV2/E-2, a forfeiture of $205 pay per month for one month (suspended to be automatically remitted if not vacated before 11 January 1992), and to perform extra duty for a period of  45 days.

5.  On 3 August 1992, his unit commander notified him of his intent to recommend his discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of a serious offense (illegal use of drugs).  The unit commander cited his wrongful use of marijuana on or about 20 May 1992 at an unknown location.  The applicant was advised of his rights.

6.  On 3 August 1992, he acknowledged notification of the separation action, consulted with legal counsel, and elected not to submit a statement in his own behalf.

7.  On 10 August 1992, the separation authority directed that he be discharged from the service under the provisions of Army Regulation 635-200, paragraph  14-12c, by reason of misconduct – commission of a serious offense (illegal use of drugs) with a general discharge.

8.  On 8 September 1992, he was discharged accordingly with a general discharge in the rank/pay grade of PV2/E-2.  He completed 2 years, 5 months, and 2 days of creditable active service.  

9.  His service record does not indicate he applied to the Army Discharge Review Board 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.  

   a.  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.  An under other than honorable conditions (UOTHC) discharge 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.  

   b.  Paragraph 3-7a states 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 applicant's records show he was 20 years of age at the time of his offense.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  

2.  His statement that he couldn't adjust to stateside duty when he returned from overseas is acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct which led to his discharge.  

3.  His service record confirms he attained the rank/pay grade of PFC/E-3 while on active duty; however, he was reduced to the rank/pay grade of PV2 as a result of his receipt of an Article 15 for wrongfully using marijuana.  

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

5.  Although a UOTHC discharge is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct, it appears the separation authority determined the applicant's overall service met the standards of acceptable conduct and performance of duty to warrant a general discharge.  

6.  Based on the seriousness of the misconduct for which the applicant was convicted his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting 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)                                         AR20140006098





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ABCMR Record of Proceedings (cont)                                         AR20140006098



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