IN THE CASE OF:	  

		BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100007384


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 his under other than honorable conditions discharge (UOTHC) to a general discharge (GD).

2.  The applicant states:

* he was assigned to Fort Stewart, GA
* he did some undefined things which caused him to serve punishment at Fort Bragg, NC
* he was supposed to be reassigned when he returned to Fort Stewart
* his first sergeant wanted him to admit to a "tire accident" but he refused
* his first sergeant would not transfer him to a new unit, opting instead to keep him in order to "ruin him"
* he then received a UOTHC discharge
* the first sergeant was relieved afterwards for unprofessional conduct
* he can't file any claim with the Department of Veterans Affairs (DVA) or use the DVA hospital for medical care because of his discharge
* he was emotionally stressed at the time of his discharge and he just wanted out of the Army
* his medical condition has worsened, it is service-related, and he needs help

3.  The applicant provides no additional documentation.


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 Regular Army 1 May 1986.  He was subsequently discharged on 7 January 1988 with a UOTHC discharge, having completed 1 year, 7 months, and 14 days of creditable active service.

3.  During his short period of active service, the applicant:

* received counseling statements on 3 October 1986, 2 March 1987, and 14 March 1987
* was arrested by civilian police for drunk driving on 15 March 1987
* received a General Officer Memorandum of Reprimand (GOMOR) on 18 March 1987 for his alcohol-related incident
* tested positive on a urinalysis for cocaine and marijuana
* was barred from reenlistment on 2 June 1987
* was convicted by a summary court-martial on 3 June 1987 for using marijuana and cocaine, being drunk and disorderly, and overindulging in intoxicating liquor or drugs
* served a period of military confinement from 3 June 1987 to 25 June 1987

4.  The applicant's separation packet is not contained in the available records; however, a duly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a UOTHC discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, by reason of misconduct - abuse of illegal drugs.

5.  There is no record that the applicant incurred any medical problems or that he addressed any medical problems through his chain of command, medical personnel, or other available agencies.

6.  There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board's 15-year statute of limitations.

7.  Army Regulation 635-200 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 UOTHC discharge is normally considered appropriate.

8.  Army Regulation 635-200 also provides guidance on characterization of service and states, in paragraph 3-7b, that a GD 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 HD.  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 wants a GD.  He states his first sergeant was out to get him.

2.  There is no evidence the applicant was singled out by his first sergeant for negative treatment and discharge based on personal animus.  The evidence does show the applicant was a poor Soldier who abused alcohol, cocaine, and marijuana.  He was convicted by a summary court-martial and served a term of confinement in a military facility.

3.  The applicant was ultimately discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct - abuse of illegal drugs.  Regularity is presumed in the applicant's discharge process.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care and other benefits should be addressed to the DVA.


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)                                         AR20100007384



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)