IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100007028 


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 upgrade of the character of service of his under other than honorable conditions discharge to a general discharge under honorable conditions.

2.  The applicant states he was receiving Department Veterans of Affairs (VA) medical services; however, the law changed and he is no longer eligible to receive medical benefits.  He requests upgrade of his discharge, based upon a review of his military personnel records, so he may receive VA medical benefits.

3.  The applicant provides no additional documentary evidence in support of his request.

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 on 16 October 1986 and enlisted in the Regular Army for a period of 3 years on 31 October 1986.

   a.  Upon completion of training he was awarded military occupational specialty (MOS) 77F (Petroleum Supply Specialist).

   b.  He served in duty MOS 77F1O while assigned to Headquarters and Headquarters Company, 4th Battalion, 9th Infantry, Fort Ord, CA, from
7 November 1986 through 2 January 1987. 

   c.  On 9 January 1987 he was assigned to the 109th Quartermaster Company, Fort Lee, VA, where he also served in duty MOS 77F1O.

3.  On 7 July 1987, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for, with the intent to deceive, signing an official document (an Application for Military Identification Card) having a false birth date.

   a.  His punishment consisted of reduction to private (E-2), forfeiture of $172.00 pay for one month, 14 days of extra duty, and 14 days of restriction (suspended for three months).

   b.  The applicant appealed the NJP and submitted additional matters to the battalion commander.  On 9 July 1987, the applicant's appeal was denied.

4.  On 8 September 1988, the applicant received NJP under Article 15, UCMJ, for wrongfully using a controlled substance (cocaine) between 6 June and 6 July 1988, which was detected by biochemical testing of a urine sample that he provided.  His punishment consisted of reduction to private (E-1), forfeiture of $200.00 pay for two months, and 45 days of extra duty.

5.  On 30 November 1988, the applicant received NJP under Article 15, UCMJ, for wrongfully using a controlled substance (cocaine) between 11 September and 11 October 1988, which was detected by biochemical testing of a urine sample that he provided, and for being absent without leave from 21 to 28 November 1988.  His punishment consisted of forfeiture of $325.00 pay for two months,
45 days of extra duty, and 60 days of restriction.

6.  On 22 December 1988, the applicant's commander notified the applicant that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12c, based on commission of a serious 


offense (abuse of illegal drugs).  The commander noted that the applicant tested positive on a urinalysis test for the use of cocaine and he continued to display misconduct prejudicial to good order and discipline by repeatedly being absent from his appointed place of duty.

   a.  On 5 January 1989, the Acting Staff Judge Advocate reviewed the separation file and found it legally sufficient to support separation action.

   b.  On 6 January 1989, the Equal Opportunity Office, Fort Lee, VA, reviewed the applicant's separation file and found no evidence of discrimination or unfair treatment of the applicant.

7.  On 9 January 1989, the applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

   a.  He acknowledged that military legal counsel for consultation was available to assist him.
   
   b.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him.  He was also advised that as the result of issuance 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 he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

   c.  The applicant acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, an act of consideration by either board did not imply that his discharge would be upgraded.

	d.  He conditionally waived consideration of his case by a board of officers and also waived personal appearance before a board of officers contingent upon receiving a characterization of service of no less favorable than under honorable conditions.

   e.  The applicant requested representation by counsel and elected to submit statements in his own behalf.


       (1)  He stated he was originally recommended for discharge under
AR 635-200, chapter 14.  After discussion between his Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) counselor and company commander, the counselor recommended the applicant be enrolled in a detoxification program, and the recommendation for discharge was changed to chapter 9 (Alcohol and Drug Abuse).

       (2)  He stated the chapter 9 discharge was never processed and the chapter 14 discharge was reinitiated because of unfounded allegations of missing formation.  He added he spent four days in illegal pre-trial confinement and was released only after an investigation by the inspector general.

   f.  The applicant placed his signature on the documents.

8.  On 11 January 1989, the applicant unconditionally waived his right to have his case heard by a board of officers.

9.  On 12 January 1989, the brigade commander recommended the applicant be discharged from the U.S. Army for misconduct based on commission of a serious offense (abuse of illegal drugs).  He also recommended that the rehabilitative transfer requirements be waived.

10.  On 12 January 1989, the separation authority approved the applicant's separation and directed the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 18 January 1989 under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct based on drug abuse, and his service was characterized as under other than honorable conditions.  At the time he had completed 2 years, 2 months, and 10 days of net active service this period.

	a.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) shows the Army Service Ribbon.

	b.  Item 29 (Dates of Time Lost During This Period) shows time lost on
20 September 1988 and from 21 - 27 November 1988.

12.  On 7 April 1989 and 23 August 1989, the applicant submitted DD Forms 293 (Applications for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the ADRB requesting upgrade of his under other than 


honorable conditions discharge to an honorable discharge.  On 28 March 1990, the ADRB determined the applicant's discharge was proper and equitable and denied the applicant's request.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 14 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.

   b.  Chapter 3, 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 applicant contends that his under other than honorable conditions discharge should be upgraded to a general discharge under honorable conditions based upon a review of his military personnel records because he would like to receive VA medical benefits.

2.  Records show the applicant completed training, he was awarded MOS 77F, and the Army Service Ribbon.

3.  The evidence of record also shows that during the applicant's period of military service under review he tested positive on two urinalysis tests for the use of cocaine, received NJP on three occasions, and he was reduced in pay grade down to E-1.  Thus, the evidence of record shows the applicant's overall record of service did not meet the standards of satisfactory conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general discharge under honorable conditions.


4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  As a matter of information, the ABCMR does not upgrade an individual's discharge solely to enhance his or her eligibility for veteran's benefits.  Therefore, there is no basis for granting the applicant's requested relief.

6.  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 this 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.



      _______ _   _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)                                         AR20100007028



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Procee