IN THE CASE OF:  	  

		BOARD DATE:  16 June 2015	  

		DOCKET NUMBER:  AR20140016962 


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 his general discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states he was young and immature and regrets the mistakes that he made.  He loves his country and feels grateful for the opportunity the Army gave him.  He is sorry for his actions and wishes for his son to see that the Army was good to and for him.

3.  The applicant provides no supporting documentation.

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 on 22 September 1997 and was trained in and awarded military occupational specialty 11M (Mechanized Infantryman).

3.  On 2 March 1999, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful use of marijuana and failure to obey a lawful general regulation by underage drinking.  

4.  On 1 April 1999, the applicant received disciplinary counseling for being absent without leave (AWOL) for more than 24 hours and failure to report for extra duty.  In the counseling statement it was noted that the applicant had failed to report for extra duty on several occasions.  In addition, he was counseled that his continued misconduct could result in further UCMJ action and possible elimination under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  He was informed that he could receive a general discharge or an under other than honorable conditions discharge.

5.  On 20 April 1999, the applicant was evaluated by a behavioral health specialist under the supervision of a Medical Corps officer who stated the applicant was command referred for a mental health evaluation.  The applicant was fully alert, fully oriented, and his thinking process was clear.  He had the mental capacity to understand and participate in separation proceedings and met the retention standards of Army Regulation 40-501 (Medical Fitness Standards).  It was concluded the applicant was psychiatrically cleared for any administrative actions deemed appropriate by his chain of command. 

6.  On 24 May 1999, his commander initiated separation action under Army Regulation 635-200, paragraph 14-12c(2) for abuse of illegal drugs (marijuana).  He was informed of his right to consult with counsel, to submit statements on his behalf, and to obtain copies of all documents used in the proposed separation action.  He was advised he could waive his rights in writing and withdraw any such waiver prior to the date the separation authority made a decision.  The applicant acknowledged receipt of the notification letter.

7.  After speaking with counsel, the applicant acknowledged the separation action and waived his administrative rights.  He elected not to submit statements in his behalf and he acknowledged he might encounter substantial prejudice in civilian life if he received a general discharge.

8.  On 28 May 1999, the company commander recommended the applicant be separated for misuse of illegal drugs.  The intermediate commanders also recommended separation with issuance of a general, under honorable conditions discharge. 
9.  On 4 June 1999, the authority approved the separation action and directed the applicant be discharged with a GD.

10.  The applicant was discharged for misconduct - illegal drug use with a GD on 30 June 1999.  He had 1 year, 9 months, and 9 days of creditable service with no foreign service.  His awards are shown as the Army Achievement Medal, Army Service Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

11.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  An HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	b.  A GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

   c.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

2.  The mere passage of time is insufficient in and of itself to warrant a change of the applicant's discharge, especially in light of the fact that his military record is devoid of significant service.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of the request for an HD.  



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)                                         AR20140016962



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ABCMR Record of Proceedings (cont)                                         AR20140016962



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