IN THE CASE OF: BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160003929 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160003929 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. IN THE CASE OF: BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160003929 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 under honorable conditions to honorable. 2. The applicant states he was an excellent Soldier and worked very hard. He was assigned to a good engineer unit in Alaska and they worked long hours. He attended any school that was available to him, including air assault school. He tested positive on a urinalysis and was given a general discharge. His commander and first sergeant gave him the option to remain in the service based on his work performance, but due to his embarrassment and personal disappointment, he opted to be discharged immediately. His commander and first sergeant told him if he had no other issues and continued to work hard, he would receive an honorable discharge at the end of his enlistment. 3. The applicant provides: * self-authored letter, dated 15 January 2016 * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 5 August 1986 for a period of 3 years. He attained the rank of specialist four/E-4 effective 1 March 1988. 3. On 3 August 1988, nonjudicial punishment (NJP) was imposed against him. No other details are known. A DA Form 4187 (Personnel Action), dated 4 August 1988, shows he was reduced in rank to private first class/E-3 effective 3 August 1988. 4. On 11 January 1989, NJP was imposed against him for using marijuana and cocaine and disobeying a lawful command. His punishment included reduction to private/E-1. 5. Discharge proceedings were initiated against him for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13. His unit commander specified the following reasons for the proposed action: * he performed unsatisfactorily in job performance and attitude * he disobeyed a superior commissioned officer * he tested positive for cocaine and marijuana 6. On 2 March 1989, he consulted with counsel, waived his rights, and acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued. He also elected not to submit a statement in his own behalf. 7. The separation authority approved the recommendation for separation and directed the issuance of a General Discharge Certificate. 8. On 27 March 1989, he was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. He completed a total of 2 years, 7 months, and 23 days of creditable active service. 9. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 10. He provided a self-authored letter, dated 15 January 2016, stating: a. While serving in an engineer unit in Alaska, he tested positive in a urinalysis. He was wrong and he accepted this. He was given NJP and offered immediate separation with a general discharge under honorable conditions or to remain on active duty and possibly receive an honorable discharge if he had no more disciplinary problems. He was embarrassed, disappointed in himself, and ashamed, so he chose immediate separation with a general discharge. b. His commander and first sergeant counseled him and were willing to allow him to redeem his mistakes. He should have listened and he regrets the decision he made at the time. He had served 2 1/2 years of his 3-year enlistment and had done a good job. c. Since his discharge, he married a great lady, has three wonderful children, and works at a warehouse. He is involved in the church, volunteers for church activities, and attends his children's school activities. d. His general discharge is inequitable for his duty performance and length of time in the service. REFERENCES: Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel. a. Chapter 13, in effect at the time, provided for separation due to unsatisfactory performance when, in the commander's judgment, the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely. Service of Soldiers separated because of unsatisfactory performance under this chapter would be characterized as honorable or under honorable conditions. b. 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: 1. Although the applicant contends he was an excellent Soldier and his discharge is inequitable based on his duty performance and length of service, his commander cited his unsatisfactory job performance and attitude as one reason for his recommendation for separation. 2. His record of service included two NJPs, one NJP for using marijuana and cocaine and disobeying a lawful command. 3. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so. 4. His post-service accomplishments are commendable. However, good post-service conduct alone is normally not a basis for upgrading a discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003929 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003929 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2