IN THE CASE OF:	  

		BOARD DATE:	      18 JUNE 2009

		DOCKET NUMBER:  AR20090005257 


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 two separate applications, that his discharge under honorable conditions (general) be upgraded to a fully honorable discharge.  He also requests directions on how to get a copy of his medical records.

2.  The applicant states that he was very proud to have served his country and that he would do so again if needed.  He states that he is attempting to have his discharge upgraded to restore honor to his family’s name.  He states that he has had seven great uncles in World War II and four uncles that served their country, including his father.  He states that he would like to be able to share with his two sons that he served during the war for his country; however, he cannot share this with pride knowing the mistake and bad choice that he made.  He states that he made a bad choice for his life and his military service and for this he is deeply hurt.  He states that he served his country both behind and on the front lines of war and that he evacuated fellow Soldiers and civilians alike during the war.  He states that he knows that his efforts helped save lives.

3.  The applicant provides in support of his applications, an undated self-authored letter, addressed to “whom this may concern” requesting that his discharge be upgraded and assistance in obtaining his medical records.

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.  On 14 June 1990, the applicant enlisted in the Regular Army in Nashville, Tennessee, for 4 years, in the pay grade of E-1.  He successfully completed his training as a medical specialist.  He was advanced to the pay grade of E-2 on 1 December 1990 and he was advanced to the pay grade of E-3 on 1 February 1991.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 30 September 1991 for assaulting a commissioned officer by striking him in the throat with a closed fist, which resulted in him being charged by the military police with assault consummated by battery.  His punishment consisted of 14 days of extra duty, 14 days of restriction, and an oral admonition.

4.  On 20 November 1991, NJP was imposed against him for a dishonored check in the amount of $235.55.  During his counseling, the applicant was told that his indebtness must be paid and that failure to pay his debts would result in administrative action and may be cause for his separation from the military service.  

5.  On 3 March 1992, NJP was imposed against the applicant for being disrespectful in language towards the charge of quarters (CQ).  His punishment consisted of 14 day of restriction and 14 days of extra duty.

6.  On 2 April 1992, the applicant was counseled for failure to be at his appointed place of duty.  He was informed that he would be declared a (rehabilitative) failure and recommended for elimination from the Army under the provisions of Army Regulation 635-200, chapter 9, if he failed to participate in a counseling program.

7.  On 24 April 1992, during a counseling session, the applicant was notified that action to eliminate him from the Army for unsuitability or misconduct was being initiated.  He was told that his unit was notified on 20 April 1992 that his urinalysis was positive for tetrahydrocannabinol (THC) and that in accordance with Army Regulation 600-85, mandatory action must be initiated.

8.  On 20 May 1992, the applicant was notified that he was being recommended for discharge from the Army under the provisions of Army Regulation 635-200, chapter 14-12(c), for misconduct.  His commander cited wrongful use of marijuana/hashish as a basis for his recommendation for discharge.

9.  The applicant acknowledged receipt of the notification on 21 May 1992 and, after consulting with counsel, he submitted a statement in his own behalf.  In the statement, the applicant expressed that he knew that the use of THC was wrong and that he made a mistake and used poor judgment.  He stated that he was planning to get married and that “she” left him and he could not deal with himself anymore.  He stated that his use of THC had not changed a thing and that his actions were just stupid.  He stated that in regard to the other acts of misconduct reflected in his records, he had been mislead on his right to submit appeals to those incidents.  The applicant stated that his commander should have been the kind of person who was looking for people to help him instead of “dropping the hammer” on Soldiers.

10.  On 11 June 1992, NJP was imposed against the applicant for wrongful use of marijuana.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay in the amount of $440.00 and 30 days of extra duty.

11.  The appropriate authority approved the recommendation for discharge on 18 June 1992 and he directed the issuance of a General Discharge Certificate.  Accordingly, on 7 July 1992, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct, due to abuse of illegal drugs.  He had completed 2 years and 24 days of net active service and he was furnished a General Discharge Certificate.

12.  A review of the applicant’s records does not show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  Army Regulation 635-200 (Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  
Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.
14.  Paragraph 3-7a of Army Regulation 635-200 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.  

15.  Paragraph 3-7b of Army Regulation 65-200 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 applicant contends that his general discharge should be upgraded to fully honorable based on his overall record of service and his desire to serve his country.

2.  His contentions have been noted.  However, the applicant was discharged for misconduct, abuse of illegal drugs.  He was discharged in accordance with the applicable regulation and, based on the nature of his offense, a discharge under other than honorable conditions is normally considered appropriate.

3.  The applicant had NJP imposed against him on four separate occasions due to his acts of misconduct and he was counseled twice as a result of his acts of indiscipline.  It appears that the applicant was furnished a discharge under honorable conditions despite his overall record of service.  

4.  The applicant’s desire to restore to his family’s name has been considered.  However, restoration of his family’s name is not sufficiently mitigating to warrant the relief requested and considering the nature of his offenses and the type of discharge that he could have received, the character of his service is not too harsh.

5.  In regard to the applicant’s request on how to obtain a copy of his medical records, the available records show that at the time of his discharge, his medical records were forwarded to the Department of Veterans Affairs (VA) in Louisville, Kentucky.  He should contact the VA in the state in which he currently resides to seek assistance in obtaining copies of his medical records from that location.  

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7. In view of the foregoing, there is no basis for granting the applicant's request.

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.




      _______ _   __XXX_____   ___
               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)                                         AR20090005257





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ABCMR Record of Proceedings (cont)                                         AR20090005257



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