IN THE CASE OF:  

		BOARD DATE:  20 January 2015

		DOCKET NUMBER:  AR20140009280


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 correction of his military records by upgrading his under other than honorable conditions (UOTHC) discharge to general, under honorable conditions.

2.  The applicant states that prior to failing a drug test in the late summer of 1993 he had a promising military career and had planned on eventually retiring.  He asks that the Board consider his 8 years of honorable service to include his combat time and personal decorations.  He contends that he made one bad decision resulting in his discharge.  He accepts responsibility for his actions.  Since his discharge he has been employed as a commercial truck driver and has never failed a drug test.  He also served his country in support of Desert Shield/Desert Storm.  His unit was awarded the Valorous Unit Award.

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) (Member Copy Number 4)
* Résumé (1 page)

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 22 April 1985, the applicant enlisted in the Regular Army.  He completed his initial training as a Vulcan Crewmember.

3.  Records show the applicant completed tours of duty in the Federal Republic of Germany in 1987 and in the Republic of Korea in 1990, where he was promoted to sergeant, pay grade E-5.  He also served in Saudi Arabia in support of Operation Desert Shield/Desert Storm in 1990 - 1991.

4.  The applicant accepted the following nonjudicial punishment (NJP):

	a.  20 July 1993 for violation of Article 112a, Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana; and

	b.  14 September 1993 for violation of Article 134, UCMJ, for breaking restriction.

5.  On 22 September 1993, the applicant's company commander notified him that he was intending to take action to effect his discharge for a pattern of misconduct and commission of a serious offense.  The commander cited as a basis for this action the applicant's positive testing for use of marijuana and his arrest on 
30 August 1993 for larceny of private property and the wrongful appropriation of a government vehicle.  Furthermore, he tried to sell the stolen property on Fort Bliss.

6.  On 22 September 1993, the applicant consulted with counsel concerning his rights.  He elected to make a statement in his own behalf.  He also requested a conditional waiver of an administrative elimination board.

7.  On 22 September 1993, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to the pattern of misconduct discussed above.

8.  On 12 October 1993, the appropriate authority denied the applicant's request for a conditional waiver and directed a board of officers be convened to determine whether the applicant should be discharged for a pattern of misconduct and the commission of a serious offense.

9.  On 1 November 1993, the board of officers convened to consider the applicant's separation for misconduct.  The board found that the applicant had committed a serious offense and had been involved in a pattern of misconduct.  The board recommended the applicant be discharged and receive a UOTHC characterization of service.

10.  On 16 November 1993, the appropriate authority approved the recommendation for discharge and directed that the applicant receive a UOTHC characterization of service.

11.  On 23 November 1993, the applicant was accordingly discharged.  He had completed 8 years, 7 months, and 2 days of creditable active duty service.  His DD Form 214 shows his awards as:

* Army Commendation Medal with 1st Oak Leaf Cluster
* Army Achievement Medal with 6 Oak Leaf Clusters
* Army Good Conduct Medal (two awards)
* National Defense Service Medal
* Humanitarian Service Medal
* Valorous Unit Award
* Noncommissioned Officer Professional Development Ribbon with  Numeral 2
* Army Service Ribbon
* Overseas Service Ribbon with Numeral 2
* Southwest Asia Service Medal with two bronze service stars
* Kuwait Liberation Medal

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

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 a pattern of misconduct.  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.  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 applicant contends that his UOTHC should be upgraded to general, under honorable conditions based on his previous honorable active duty service.

2.  The applicant’s 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.

3.  The available evidence shows that the applicant had a pattern of misconduct and committed a serious offense.  His misconduct greatly diminished his prior good service.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service less than honorable.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20140008694



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ABCMR Record of Proceedings (cont)                                         AR20140009280



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