IN THE CASE OF:  	  

		BOARD DATE:  18 August 2015	  

		DOCKET NUMBER:  AR20140020449 


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, in effect, an upgrade of his general discharge to a fully honorable discharge.

2.  The applicant states:

* he hid in his home when he returned from Iraq and no one cared about his medical condition
* he was past his expiration term of service (ETS) date; therefore, he had no idea he was being listed as absent without leave (AWOL)
* it has now been found that his medical condition was directly related to his time overseas
* his discharge should reflect how well he served when he was at war and not how he served as a result of his illness

3.  The applicant provides no additional evidence.

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 for 3 years on 3 January 2001.  He completed training as a light weapons infantryman.

3.  After being counseled on 1 April and 22 November 2002 for failing two urinalyses, the applicant accepted nonjudicial punishment (NJP) on 16 April and 10 December 2002 for wrongful use of marijuana.

4.  On 18 November 2003, the applicant was counseled for being AWOL from 29 October through 18 November 2003.

5.  On 15 January 2004, the applicant underwent a mental status evaluation.

* he was cleared for any administrative action deemed appropriate by his command
* there was no psychiatric disease or defect that warranted disposition through medical channels
* he was mentally responsible, he was able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

6.  On 15 January 2004, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, due to a pattern of misconduct.  His commander cited his wrongful use of marijuana and his days of being AWOL as the basis for his recommendation for discharge.  The applicant acknowledged receipt of the notification.  After consulting with counsel, he elected not to submit a statement in his own behalf.

7.  On 23 January 2004, the applicant was convicted, pursuant to his pleas, by a summary court-martial of being AWOL on the following dates:

* 31 October to 8 November 2003
* 12 November to 18 November 2003
* 19 December 2003 to 7 January 2004

8.  The appropriate authority approved the recommendation for discharge on 27 January 2004 and directed a discharge under honorable conditions (general).

9.  On 23 March 2004, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b.  He completed 3 years, 2 months, and 21 days of net active service during this period.  He received a discharge under honorable conditions (general).

10.  On 10 December 2008, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

11.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.  A discharge under other than honorable conditions 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 contentions have been noted.

2.  Although a discharge under other than honorable conditions was normally considered appropriate for the authority and reason for his discharge, it appears the separation authority considered his overall record of service and determined that his separation warranted a general discharge.

3.  He accepted NJP on two separate occasions for failing his urinalyses.  He was convicted by a summary court-martial for being AWOL on three separate occasions.  He has not shown error or injustice in the type of discharge he received nor has he shown that he was suffering from any medical condition while he was in the Army that would warrant an upgrade of his general discharge to a fully honorable discharge.

4.  Therefore there is an insufficient evidentiary basis for granting his 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 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)                                         AR20140020449



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ABCMR Record of Proceedings (cont)                                         AR20140020449



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