BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150003799 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 an upgrade of his general discharge to a fully honorable discharge. 2. The applicant states: * he received a general discharge in 1990, a year before his tour was over, due to misconduct (commission of a serious offense) * he was discharged even though the serious offense (drugs) occurred months prior * he agreed to the discharge because his commander agreed to release him a year early; he was too young and made a mistake by agreeing to this arrangement; the discharge has always haunted him and shamed him * he has been a good man and has been a member of the roofer union since 1992 * he recently fell on hard times and is serving a sentence for a crime he committed, but he will be released next year * he has been active with veterans meetings and groups and when he is released, he will have a clean sheet and a fresh start 3. The applicant does not provide 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's records show he was born in November 1968 and enlisted in the Regular Army (RA) at 18 years of age on 10 November 1987. He held military occupational specialty 95B (Military Police). 3. He served in Germany from on or about 6 May 1988 to on or about 28 October 1990. He completed various training courses and he was awarded or authorized the: * Army Service Ribbon * Parachutist Badge * Marksman Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Grenade Bar * Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.45 Caliber) * Expert Marksmanship Qualification Badge with Pistol Bar (9 mm) 4. On 24 April 1990, he participated in a urinalysis and his urine sample tested positive for marijuana. 5. On 8 June 1990, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using marijuana. His punishment consisted of a reduction to E-1, suspended forfeiture of pay, and extra duty and restriction. 6. On 4 September 1990, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct -commission of a serious offense. He recommended a general discharge. 7. On 4 September 1990, the applicant acknowledged receipt of the commander's intent to separate him. He indicated he was afforded the opportunity to consult with counsel but elected to decline that opportunity. He was advised by his commander of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He elected not to submit a statement on his own behalf. He acknowledged he understood that: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge 8. Subsequent to his acknowledgement, the applicant’s immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for conviction by civil court. The immediate commander further recommended an under honorable conditions (general) discharge. 9. His chain of command, including his intermediate and senior commanders, recommended approval of the applicant’s discharge with an under honorable conditions discharge. 10. On 27 September 1990, the separation authority approved the recommendation for separation and ordered the applicant's discharge from the Army under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct-commission of serious offense with an under honorable conditions characterization of service. Accordingly, the applicant was discharged on 30 October 1990. 11. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the under the provisions of chapter 14 of Army Regulation 635-200 for misconduct-commission of serious offense with an under honorable conditions characterization of service. This form further confirms that he completed 2 years, 11 months, and 21 days of creditable active military service. 15. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15 year statute of limitations. 16. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions; a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities; and desertion or absence without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. a. 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. b. 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 evidence of record shows the applicant committed a serious offense in that he wrongfully used illegal drugs. Accordingly, his chain of command initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process. 2. The evidence of record further shows the applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 3. There is no evidence of record and he provides none to support his contention that he was wrongfully or unjustly discharged. His wrongful use of illegal drugs clearly shows the quality of his service was diminished below that meriting an honorable discharge. 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) AR20150003799 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003799 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1