IN THE CASE OF: BOARD DATE: 28 April 2011 DOCKET NUMBER: AR20100025787 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 discharge under other than honorable conditions be upgraded to honorable. 2. The applicant states: * he needs his discharge upgraded for benefits * he has no insurance or job 3. The applicant provides no documentary 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. He enlisted in the Regular Army on 15 October 1981 for a period of 3 years. He completed his training and was awarded military occupational specialty 13B (cannon crewman). 3. His Army Discharge Review Board (ADRB) proceedings state on 29 April 1983 he was convicted by a summary court-martial of possessing and distributing marijuana. No other details are available. 4. On 15 July 1983, he was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12, for misconduct (pattern of misconduct). His unit commander based his recommendation for separation on the applicant’s misconduct. 5. On 15 July 1983, he consulted with counsel and waived consideration of his case by an administration separation board. He also acknowledged that he might encounter substantial prejudice in civilian life if a discharge under other than honorable conditions were issued. He elected not to submit a statement in his own behalf. 6. On 15 July 1983, the separation authority approved the recommendation for discharge and directed the issuance of a discharge under other than honorable conditions. 7. He was discharged on 15 July 1983 under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (pattern of misconduct). He had served a total of 1 year, 8 months, and 11 days of creditable active service with 20 days of lost time. 8. On 21 May 1984, the ADRB denied his request for a general discharge. 9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs. The issuance of a discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the member's overall record. 10. 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate. 11. 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. The ABCMR does not correct records solely for the purpose of making the applicant eligible for veterans' benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. 2. His record of service included one summary court-martial and 20 days of lost time. 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, his record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge. 3. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. He had an opportunity to submit a statement in which he could have voiced his concerns; however, he failed to do so. 4. The type of discharge directed and the reasons were therefore 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) AR20100025787 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100025787 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1