BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100012152 


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 discharge to a general discharge.

2.  The applicant states he is sorry for the mistake he made while in the military and that he deserves to have his discharge upgraded.  He adds he was assured in 1991 that his discharge would be upgraded after six months; however, he was unaware that he had to submit a request to have his discharge upgraded.  He adds that he did not know his discharge was going to be a problem until he filed for benefits with the Department of Veterans Affairs.

3.  The applicant provides three character reference letters.

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 and entered active duty in the Regular Army for a period of 4 years on 23 June 1989.  Upon completion of training he was awarded military occupational specialty 13B (Cannon Crewmember).  He attained the rank of private first class (E-3) on 1 May 1990.

3.  On 24 June 1991, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for leaving his appointed place of duty (guard post) without authority on 21 May 1991 and for failing to go at the time prescribed to his appointed place of duty on 24 May 1991.

   a.  His punishment consisted of reduction to pay grade E-1 (suspended to be automatically remitted if not vacated before 2 January 1992) and 45 days of extra duty.

   b.  On 2 August 1991, the commander vacated the suspension of the punishment of reduction to pay grade E-1.

4.  A DA Form 4856 (General Counseling Form), dated 25 July 1991, shows the applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program for counseling.

5.  On 7 August 1991, the applicant received NJP under Article 15, UCMJ, for wrongfully using a controlled substance (cocaine) on 8 July 1991.

   a.  His punishment consisted of 45 days of extra duty.

   b.  The applicant appealed the NJP, but did not submit additional matters to the commander.
   
c.  On 15 August 1991, the applicant's appeal was denied.

6.  On 11 September 1991, 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), paragraph 14-12c, for misconduct based on commission of a serious offense. The commander's reason for his proposed action was that the applicant had a positive urinalysis test for cocaine.  The applicant was advised of his rights and the separation procedures involved.

7.  On 23 September 1991, 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 elected not to submit statements in his own behalf.
   
   c.  He waived consideration of his case by a board of officers and waived personal appearance before a board of officers.

   d.  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.

   e.  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.

   f.  The applicant placed his signature on the document.

8.  The company commander recommended that the applicant be separated under the provisions of AR 635-200, paragraph 14-12c, for misconduct based on commission of a serious offense.

9.  The battalion and brigade commanders both recommended approval of the applicant's separation with a character of service of under other than honorable conditions.

10.  On 5 November 1991, the separation authority approved the applicant's separation and directed the applicant be issued an Under Other Than Honorable Discharge Certificate.

11.  A Transition Counseling Acknowledgement Checklist, dated 18 November 1991, shows the applicant was offered information and counseling on various topics related to the transition process.  The applicant indicated he did not desire any counseling and he placed his signature on the checklist.

12.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 18 November 1991 under the provisions of AR 635-200, paragraph 14-12c, for misconduct based on abuse of illegal drugs, and his service was characterized as under other than honorable conditions.  At the time he had completed 2 years, 4 months, and 26 days of net active service this period.

13.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

14.  In support of his request, the applicant provides three letters from individuals who have known him for the past two years and attest to his personal character.

15.  AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 14 deals with separation for misconduct based on commission of a serious offense, 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 his under other than honorable conditions discharge should be upgraded to a general discharge under honorable conditions because he acknowledges his mistake, he was assured his discharge would be upgraded after six months, and he was unaware that he had to submit a request to have his discharge upgraded.

2.  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.

3.  The evidence of record shows that during the applicant's period of military service under review he received NJP on two occasions (one of which was for testing positive on a urinalysis test for the use of cocaine) and he was reduced to private (E-1).  In view of the foregoing, and based on the reason for the applicant's discharge, 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 evidence of record shows the applicant declined information and counseling at the time of his transition processing.  In addition, he acknowledged with his signature that he understood that if he received a discharge certificate/ character of service which was less than honorable, he could make application to the ADRB or the ABCMR requesting upgrade of his discharge.
	
	a.  There is no evidence, and the applicant provides insufficient evidence, to show he was advised that his discharge would automatically be upgraded after six months of his discharge.

	b.  Thus, the evidence of record does not support the applicant's contention that he was assured his discharge would be upgraded after six months and that he was unaware that he had to submit a request to have his discharge upgraded. 

	c.  Moreover, the U.S. Army does not upgrade a discharge solely to enhance a Soldier's eligibility for Government benefits.  Therefore, in view of all of the foregoing, the applicant is not entitled to relief in this case.

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 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)                                         AR20100012152



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ABCMR Record of Proceedings (cont)                                         AR20100012152



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