IN THE CASE OF:	  

		BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20090021755 


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 the following corrections be made to his DD Form 214 (Certificate of Release or Discharge from Active Duty):  

	a.  upgrade his character of service from general to fully honorable.

	b.  delete from Item 12a (Date Entered Active Duty) 23 July 1986 and add
13 November 1985. 

	c.  delete from Item 28 (Narrative Reason for Separation) "Misconduct-Commission of a Serious Offense" and add "Mental Health, Post Traumatic Stress, and Anxiety." 

2.  The applicant states he neither committed any serious offense nor was he discharged for use of illegal drugs.  He failed a urine test 2 years prior to being discharged and he was never court-martialed.  He was an honorable man.  He was being seen by a psychiatrist for extreme mental health problems at the time. He was sent home because he was no longer capable of serving safely due to his mental health issues.  The Army lost his service records despite of the fact that his back problems and right wrist condition are both service-connected injuries.  He asks that his case be expedited because he is in need of emergency medical care.  He believes there is a small discrepancy in his enlistment date.  His last DD Form 215 (Correction to DD Form 214) only listed his discharge date but the Board forgot to list his enlistment date in front of the separation date.  


3.  The applicant provides his:

* DD Form 214 dated 11 April 1988
* DD Form 215 dated 8 June 1989
* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) dated 13 November 1986
* DA Form 2-1 (Personnel Qualification Record) 

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 U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP) for a period of 8 years on 13 November 1985.  He acknowledged in item 8 (Agreements) of his DD Form 4 that he understood his enlistment in the DEP was in a non-pay status and that the DEP time was not creditable for pay purposes upon entry into a pay status.  He also acknowledged he understood this time was counted towards fulfillment of his military service obligation (MSO) or commitment.  He further authenticated this form and its allied documents by placing his signature in the appropriate block(s).

3.  On 23 July 1986, after having been in the DEP for 8 months and 10 days, he was discharged from the DEP on 23 July 1986 and executed a 4-year enlistment in the Regular Army (RA) on the same date.  He subsequently completed the training requirements and was awarded military occupational specialty 36K (Combat Signaler).  He was assigned to the 1st Battalion, 29th Field Artillery, Fort Carson, CO.

4.  On 13 April 1987, he participated in a unit urinalysis and his urine sample tested positive for marijuana.  


5.  On 30 June 1987, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.  His punishment consisted of a reduction in rank, a forfeiture of pay, and extra duty.

6.  On 17 and 24 July 1987, he was counseled by his platoon sergeant for failing to be at his appointed place of duty and for writing a check when the funds in his account were insufficient to cover it.

7.  On 16 September 1987, he departed his unit in an absent without leave (AWOL) status.  However, he returned to military control on 29 September 1987.

8.  On 6 October 1987, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from on or about 16 September through 29 September 1987.  His punishment consisted of a reduction in rank, a forfeiture of pay, and restriction and extra duty.

9.  On 9 February 1988, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from on or about 22 January to 23 January 1988.  His punishment consisted of a forfeiture of pay and extra duty.

10.  On 8 March 1988, he underwent a mental status evaluation.  The evaluating military physician indicated the applicant was normal, fully oriented and alert, with a clear thinking process and normal thought content.  He was mentally responsible, mentally capable to understand and participate in administrative proceedings, and he met retention requirements prescribed by applicable regulations. 

11.  On 30 March 1988, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations), due to misconduct, consisting of abuse of illegal drugs, writing a dishonored check, and being AWOL twice.  The immediate commander recommended that he be issued a general discharge.

12.  On 1 April 1988, he acknowledged notification of the commander's intent to separate him.  He consulted with legal counsel, and he was advised of the basis for the contemplated separation action 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 waived a personal appearance and consideration of his case by a board of officers contingent upon receiving a general discharge.  He declined to submit a statement on his own behalf.  
13.  The applicant further 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 and that 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.

14.  Subsequent to this election, his immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct - abuse of illegal drugs and dishonored checks.  The immediate commander recommended a general discharge.  This was followed by a recommendation for approval by his intermediate commander 

15.  On or around 4 April 1988, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 for misconduct – abuse of illegal drugs and directed that he be furnished a General Discharge Certificate.  

16.  On 11 April 1988, the applicant was discharged accordingly.  His DD Form 214 shows he completed 1 year, 8 months, and 6 days of creditable active military service.  This form further shows the following entries:

* Item 12a shows the entry "86  07  23" 
* Item 12e (Total Prior Inactive Service) shows the entry "00  08  10"
* Item 28 shows the entry "Misconduct- Abuse of Illegal Drugs"
* Item 18 (Remarks) shows the entry DEP 851113 - 870722 


17.  On 15 June 1989, the Army Discharge Review Board (ADRB) determined his discharge was both proper and equitable; however, the ADRB determined his narrative reason for separation should be changed from "Misconduct - Abuse of Illegal Drugs" to "Misconduct - Commission of a Serious Offense" and the authority for separation from paragraph 12(c) to paragraph 12(b) of Army Regulation 635-200.  He was subsequently issued a DD Form 215 that shows these corrections. 

18.  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.  The separation reason in all separations authorized by this paragraph will be “misconduct.”  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

19.  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.  

20.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  The instructions for Item 12a state to enter the date of entry on active duty.  The instructions for Item 12d state to enter the total amount of prior active military service, and the instructions for Item 12e state to enter the total amount of prior inactive service less lost time, if any.  DEP time that began on or after 1 January 1985 is not creditable service for pay purposes; however, it is creditable service for completing the statutory MSO and will be entered in block 18.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded, the narrative reason for separation should be corrected, and the date he entered active service should also be corrected.

2.  With respect to his date of entry, the evidence of record shows he enlisted in the USAR under the DEP on 13 November 1985.  He completed 8 months and 10 days of inactive service before he enlisted in the RA on 23 July 1986.  DEP time that began on or after 1 January 1985 is not creditable service for pay purposes; however, it is creditable service for completing the statutory MSO, and will be entered in block 18.  

3.  The DD Form 214 is a summary of a Soldier’s most recent period of continuous active service.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The applicant’s DD Form 214, dated 12 March 2009, correctly reflects his date of entry on active duty as 23 July 1986, erroneously reflects his prior inactive service as 8 months and 10 days (since DEP time is not creditable for pay, it is not inactive service), and his DEP time in item 30.  

4.  The applicant's record of service shows he accepted NJP on three different occasions:  He was AWOL twice, tested positive for marijuana, and wrote a bad check.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His incidents of misconduct diminished the quality of his service.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

6.  With respect to the narrative reason for separation, his service records show he was discharged under the provisions of paragraph 14-12c of Army Regulation 635-200 due to his misconduct consisting of abuse of illegal drugs, being AWOL, and writing a bad check.  Being AWOL and drug abuse are considered serious offenses: 

	a.  Prior to his discharge, he underwent a mental status evaluation wherein it was determined he was normal, fully oriented and alert, with a clear thinking process, and normal thought content.  He was mentally responsible, mentally capable to understand and participate in administrative proceedings, and he met retention requirements prescribed by applicable regulations.  There was no indication of a mental disorder, post traumatic stress, or anxiety.

	b.  The ADRB corrected the applicant's narrative reason for separation from "abuse of illegal drugs to "commission of a serious offense" and the authority for separation from paragraph 12c to paragraph 12b of Army Regulation 635-200.  The ADRB also determined that his discharge was both proper and equitable.  

	c.  Therefore, the underlying reason for his discharge was his misconduct, commission of a serious offense.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The only valid narrative reason for separation permitted under this paragraph is "misconduct - commission of a serious offense" which is correctly shown on his DD Form 214.


7.  The ABCMR does not correct records for the purpose of establishing entitlement to other programs or benefits.  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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to the requested relief.

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)                                         AR20090021755



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ABCMR Record of Proceedings (cont)                                         AR20090021755



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