IN THE CASE OF:  	  

		BOARD DATE:  20 January 2015	  

		DOCKET NUMBER:  AR20140008827 


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 discharge.

2.  The applicant states that he was young and immature when he was serving on active duty.  He acknowledges that he made unwise choices and apologizes for his youthful indiscretions.

3.  The applicant provides no documentary evidence in support of his application.

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 19 January 1982, the applicant enlisted in the Regular Army (RA) for a period of 3 years.  At the time he was 24 years of age.  He was awarded military occupational specialty 94B (Food Service Specialist).  

   a.  On 23 June 1983, he received orders for Hawaii and he extended the term of his enlistment for a period of 18 months.

   b.  On 26 July 1983, he was assigned to Headquarters and Headquarters Company, 1st Battalion, 35th Infantry, 25th Infantry Division, Schofield Barracks.  

   c.  He attained the rank of sergeant (SGT)/pay grade E-5 on 6 February 1985.

   d.  On 7 August 1985, he extended the term of his enlistment for a period of 
19 months and established his expiration term of service date as 18 February 1988.

3.  The applicant accepted nonjudicial punishment (NJP) -

* on 21 February 1986, for wrongfully using marijuana
* on 7 March 1986, for failing to go at the time prescribed to his appointed place of duty

4.  On 11 March 1986, the applicant's commander notified him that he was recommending him for separation under the provisions of Army Regulation 
635-200 (Enlisted Separations - Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12b, for misconduct based on commission of a serious offense.  The basis for the commander's proposed action was the applicant's positive urinalysis for marijuana.  The applicant was advised of his rights and the separation procedures involved.

5.  On 12 March 1986, the applicant consulted with legal counsel and was advised of the rights available to him.

	a.  He acknowledged that military legal counsel for consultation was available to assist him and he waived counsel for consultation.

   b.  He indicated that he would not submit statements in his own behalf.

	c.  He was advised that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  


   d.  He was informed that if he received a general discharge he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge.  However, an act of consideration by either board did not imply his discharge would be upgraded.

	e.  The applicant and his counsel placed their signatures on the document.

6.  The immediate and intermediate commanders recommended approval of the applicant's separation action. 

7.  The separation authority approved the recommendation for discharge and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, with a General Discharge Certificate.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 3 April 1986 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct based on commission of a serious offense.  His service was characterized as under honorable conditions (general).  He had completed 4 years, 2 months, and 15 days of net active duty service during this period.

9.  A review of the applicant's military personnel record failed to reveal any evidence that the applicant applied to the ADRB for review of his discharge within its 15-year statute of limitations.

10.  The Manual for Courts-Martial (MCM), United States (2012 Edition), Part IV (Punitive Articles), in pertinent part, lists Article 112a (Wrongful use, possession, etc., of controlled substances).

11.  Army Regulation 635-200, in effect at the time, 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, conviction by civil authorities, desertion, or absences without leave.  Members are subject to discharge for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the MCM.  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 considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the member's overall records.

 	b.  Chapter 3, 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 applicant contends that his discharge should be upgraded because he was young and immature, he made unwise choices, and he apologizes for his youthful indiscretions.

2.  The applicant enlisted in the RA at age 24.  He successfully completed training, was awarded MOS 94B, promoted to SGT (E-5), and he served on active duty for more than 4 years before committing the serious offense that led to his discharge.  Thus, his contention that he was young and immature when he made unwise choices (at the age of 28) is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant's administrative discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct based on commission of a serious offense was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason for and type of discharge directed were both proper and equitable.

4.  The applicant's military personnel record shows he received NJP on two occasions.  In addition, he failed to complete his 6 year and 1 month active duty obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

5.  Therefore, there is an insufficient 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)                                         AR20140008827



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ABCMR Record of Proceedings (cont)                                         AR20140008827



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