BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100010975 


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 his discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states he was in a bank parking lot inside his friend's car when the police in Seaside, CA, stated they "looked suspicious" and searched the vehicle.  The police found cocaine on the ground outside the vehicle and assumed it was theirs.  He contends the cocaine was not his or his friend's.  He believes his discharge should be upgraded to honorable since the drugs were not his.  He wants to receive benefits.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army on 13 January 1981 for a period of 2 years.  He trained as a cannon crewman and was honorably discharged on 6 January 1983 for immediate reenlistment.  He reenlisted on 7 January 1983 for a period of 3 years.  He attained the rank of sergeant.

3.  On 20 May 1985, the applicant's unit commander initiated separation proceedings under the provisions of paragraph 14-12c of Army Regulation 
635-200 (Personnel Separations) for misconduct for commission of a serious offense.  He cited the applicant's two convictions for driving under the influence on 30 September 1983 and 10 April 1985 and his civil arrest for possession of cocaine on 18 April 1985.

4.  On 24 May 1985, a bar to reenlistment was imposed against the applicant.

5.  On 10 July 1985, the applicant consulted with counsel and requested consideration of his case by a board of officers.

6.  A board of officers convened on 26 September 1985 and found the applicant was unacceptable for further retention in the military service because of the commission of a serious offense and recommended that he be discharged from the service and issued a discharge under other than honorable conditions.  On 27 October 1985, the separation authority approved the findings and recommendation of the board.

7.  Accordingly, the applicant was discharged under other than honorable conditions on 14 November 1985 under the provisions of Army Regulation 
635-200, paragraph 14-12c, for misconduct for commission of a serious offense.  He served a total of 4 years, 10 months, and 2 days of creditable active service.

8.  There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.

10.  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.

11.  Army Regulation 635-200, 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 ABCMR does not correct records 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.

2.  The applicant's record of service during his last enlistment included two convictions for driving under the influence, a civil arrest for possession of cocaine, and a bar to reenlistment.  He was a sergeant.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

3.  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.

4.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.



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)                                         AR20100010975



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ABCMR Record of Proceedings (cont)                                         AR20100010975



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