BOARD DATE: 18 August 2009 DOCKET NUMBER: AR20090002543 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 that his discharge under other than honorable conditions be upgraded. 2. The applicant states that his discharge was unfair. He indicates that during his review board another Soldier was there for the same reason (drug abuse) and he got a general discharge. He claims that maybe because the other Soldier was another race he got a general discharge. He points out that he did his job in a military manner, that he gave 12 years of his life and he wanted to make the Army a career, that he was never absent without leave, and that he was not a deserter. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a VA Form 21-4138 (Department of Veterans Affairs Statement in Support of Claim 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. Having prior active service in the Regular Army from 14 November 1973 to 25 July 1982, the applicant reenlisted on 26 July 1982 for a period of 4 years in the rank of sergeant. He had trained as a fire support specialist and a cannon crewman. 3. On 14 September 1984, nonjudicial punishment was imposed against the applicant for using marijuana. His punishment consisted of a reduction to E-4, a forfeiture of pay (suspended), and extra duty. 4. On 2 April 1985, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct - drug abuse. 5. On 4 April 1985, after consulting with counsel the applicant requested consideration of his case by a board of officers. 6. On 7 May 1985, a bar to reenlistment was imposed against the applicant. 7. A board of officers convened on 14 May 1985 and found that the applicant was guilty of smoking marijuana and recommended that he be separated from the service and issued a discharge under other than honorable conditions. On 15 August 1985, the separation authority approved the findings and recommendation of the board. 8. Accordingly, the applicant was discharged under other than honorable conditions on 28 August 1985 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense). He had served a total of 11 years, 9 months, and 15 days of creditable active service. 9. On 19 August 1986, the Army Discharge Review Board denied the applicant's request for a discharge upgrade. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 (military or civilian 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. 11. Army Regulation 635-200, 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. 12. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. There is no evidence of record which shows the applicant was a victim of racial discrimination. 2. The applicant’s record of service during his last enlistment included one nonjudicial punishment for smoking marijuana and a bar to reenlistment. He was a sergeant. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge. 3. 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. 4. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 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) AR20090002543 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090002543 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1