BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140012116 


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 general, under honorable conditions discharge.

2.  The applicant states that he was assigned to Company C, 2nd Battalion,
9th Infantry, Fort Ord, CA, at the time of his discharge.  Since that time he has become a positive god-fearing husband and father, and he continually strives to be a better person.  An upgrade of his discharge will be a major accomplishment in helping him reach the goals he has set.

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.  The applicant enlisted in the Regular Army (RA) on 19 March 1991 for a period of 3 years.  Upon completion of training he was awarded military occupational specialty 11B (Infantryman).  He served overseas in the Republic of Korea from 8 July 1991 to 8 July 1992 and he attained the rank of specialist four/ pay grade E-4 on 1 March 1992.

3.  The applicant accepted nonjudicial punishment (NJP) for wrongful use of marijuana between 9 October 1992 and 9 November 1992; a violation of the Uniform Code of Military Justice (UCMJ), Article 112a (Wrongful use, possession, etc., of controlled substances).  His punishment included reduction to pay grade E-1, forfeiture of $407.00 pay per month for two months, 45 days of extra duty, and 45 days of restriction.

4.  On 26 February 1993, the Commander, U.S. Army Garrison, 7th Infantry Division (Light), Fort Ord, CA, notified the applicant of suspension of driving privileges on the Fort Ord base complex as a result of his apprehension by the Fort Ord Police Department for driving under the influence of alcohol on 
30 January 1993.

5.  On an unspecified date, 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 14-12c, based on commission of a serious offense.  The bases for his proposed action were that the applicant tested positive for marijuana and he was apprehended for driving under the influence of alcohol.  The applicant was advised of his rights and the separation procedures involved, and instructed to acknowledge receipt of the notification by 2 April 1993.

6.  The applicant acknowledged receipt and indicated with his signature that he understood he must consult with consulting counsel as to election of his rights.  (A copy of the applicant's election of his rights is not filed in the separation packet.)

7.  The commander recommended approval of the applicant's separation action. He noted the applicant had been counseled and enrolled in the command Alcohol and Drug Abuse Prevention and Control Program.  He recommended a waiver of the rehabilitative requirements indicating that further rehabilitation efforts would not be feasible or appropriate because it would not produce the quality Soldier desired by the Army.

8.  His immediate and intermediate commanders recommended approval of the applicant's separation with a general, under honorable conditions discharge.
9.  The separation authority approved the recommendation for discharge of the applicant and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2)(a), for misconduct – abuse of an illegal drug, and that he be issued a General Discharge Certificate.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 18 May 1993 under the provisions of Army Regulation 635-200, paragraph 14-12c(2)(a), with service characterized as under honorable conditions (general).  He completed 2 years and 2 months of net active service this period.

11.  A review of his military personnel records failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

12.  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 serious offense, conviction by civil authorities, desertion, or absences without leave.  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 his discharge should be upgraded because he has become a positive god-fearing husband and father, he continually strives to be a better person, and an upgrade of his discharge will be a major accomplishment in helping him reach the goals he has set.


2.  Records show the applicant enlisted in the RA on 19 March 1991 and he was discharged under honorable conditions on 18 May 1993 after completing 
2 years and 2 months of active duty.

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 (abuse of illegal drugs) 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 appropriate and equitable.

4.  The applicant's military personnel records show he tested positive for marijuana; he received NJP for wrongful use/possession of a controlled substance; he was reduced to private (E-1), and he was apprehended for driving while under the influence of alcohol.  In addition, he completed only 2 years and 2 months of his 3-year 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)                                         AR20140012116



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ABCMR Record of Proceedings (cont)                                         AR20140012116



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