IN THE CASE OF:	  

		BOARD DATE:	        21 JULY 2009

		DOCKET NUMBER:  AR20090006237 


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 general discharge under honorable conditions be upgraded to an honorable discharge. 

2.  The applicant states he made some bad decisions during his enlistment, not realizing how they would affect his future.  He states he is a reformed man and needs veterans benefits to set his life back on track.  He states he was an excellent Soldier and would have had a long military career.

3.  The applicant provides no additional evidence or official documentation 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.  The applicant's military personnel records show he enlisted in the Regular Army on 7 July 1983.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 91A (Medical Specialist).  On 16 April 1986, he extended his enlistment for a period of 37 months.

3.  On 1 December 1983, the applicant was assigned to Headquarters and Headquarters Company, 2nd Battalion, 5th Cavalry, 1st Cavalry Division at Fort Hood, TX.

4.  On 21 March 1986, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his appointed place of duty.

5.  On 6 January 1987, the applicant accepted NJP under the provisions of Article 15, UCMJ, for wrongful use of marijuana.

6.  On 9 January 1987, a bar to reenlistment was imposed against the applicant based on two positive urinalyses for marijuana.

7.  On 10 March 1987, the applicant received a mental status evaluation.  According to the DA Form 3822-R (Report of Mental Status Evaluation) the examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings.

8.  On 27 April 1987, the applicant's commander notified him that action was being initiated to separate him under the provisions of paragraph 14-12d, Chapter 14 of Army Regulation 635-200 (Personnel Separations) based on his positive urinalyses results dated 10 January 1985 and 11 December 1986.  The commander advised the applicant of his right to consult with counsel; his right to obtain copies of documents that would be sent to the separation authority supporting the proposed separation action; his right to request a hearing before an administrative separation board; his right to submit statements in his own behalf; to be represented by counsel; to waive any of these rights; and to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge.  The commander also advised the applicant the proposed separation action could result in an under other than honorable conditions discharge.

9.  On 6 May 1987, the applicant submitted a statement acknowledging he had been advised by counsel of the basis for the contemplated separation action for abuse of illegal drugs.  The applicant did submit statements in his own behalf.  He requested a personal appearance before an administrative separation board and he requested representation by counsel.  The applicant acknowledged that as a result of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and state laws and that he could expect to encounter substantial prejudice in civilian life. 

10.  The applicant's commander recommended that he receive an under other than honorable conditions discharge due to drug abuse under the provisions of Chapter 14 of Army Regulation 635-200.  The commander stated the applicant had two positive urinalyses results dated 10 January 1985 and 11 December 1986.  The commander also stated the applicant had NJP imposed against him under the provisions of Article 15, UCMJ for failure to repair and illegal drug abuse.  The commander also stated the applicant had been counseled by his chain of command concerning his inability to conform to military standards and that he had been counseled verbally to assist him in making that transition to no avail.

11.  The applicant's intermediate commander recommended approval of the discharge recommendation with the issuance of a General Discharge Certificate.

12.  On 14 May 1987, the appropriate authority waived further rehabilitation, and counseling, and approved the recommendation for the applicant’s discharge under the provisions of paragraph 14-12d, Army Regulation 635-200 with the issuance of a General Discharge Certificate.  

13.  On 22 May 1987, the applicant was discharged under the provisions of Chapter 14, paragraph 14-12d of Army Regulation 635-200 by reason of misconduct - drug abuse.  He had completed 3 years, 10 months, and 16 days of active service that was characterized as under honorable conditions.  

14.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

15.  Chapter 2 of Army Regulation 635-200 (Personnel Separations), in effect at the time, specified that if a Soldier was being considered for an administrative discharge, wherein the award of an under other than honorable conditions discharge was contemplated or if the individual had more than 6 years of service at the time the discharge action was initiated, the individual may request a hearing by a board of officers.  However, if a general or honorable discharge was to be awarded, and the individual has less than 6 years of service at the time the discharge action is initiated, the Soldier does not have the right to appear before a board of officers.  In all cases, the individual has the right to consult with military or civilian counsel of his choice, and any matters to be considered by the separation authority may be submitted in writing at the time he is officially notified of the recommended separation action.  A reasonable period of time is allowed to make such consultations with counsel and to submit any matters to be considered.

16.  Chapter 14, paragraph 14-12d of Army Regulation 635-200, in effect at the time, dealt with separation for various types of misconduct, which included drug abuse, and provided 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.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, in his statement dated 6 May 1987, requested an administrative separation board.  However, he was discharged on 22 May 1987 with a characterization of service of under honorable conditions (general discharge).  Therefore, the applicant was not entitled to have his case considered by an administrative separation board because he did not have over 6 years of active service and he received a general discharge.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.



3.  The two positive urinalyses the applicant received clearly show he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or significant achievement.  

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits.  In addition, granting veterans benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for veterans benefits should be addressed to the Department of Veterans Affairs.

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

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)                                         AR20090006237



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ABCMR Record of Proceedings (cont)                                         AR20090006237



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