BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100024899 


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, in effect, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states he would like his character of service recognized as honorable for the purpose of qualifying for Department of Veterans Affairs (VA) medical benefits.

3.  The applicant provides:

* DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* VA Form 21-4138 (Statement in Support of VA Claim)
* VA Form 10-10EZ (Application for Benefits)
* Standard Form 180 (Request Pertaining to Military Records)

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's records show he enlisted in the Regular Army on 6 September 1983 having prior enlisted service.  He held military occupational specialty 19K (M-1 Armor Crewmember) and executed a reenlistment on 30 March 1986.

3.  His records also show he served in Germany from 18 September 1983 to 8 March 1985 and attained the rank/grade of sergeant/E-5.  He was awarded the Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle and Pistol Bars, and Expert Marksmanship Qualification Badge with Grenade Bar.

4.  On 23 July 1987, he participated in a unit urinalysis and his urine sample tested positive for marijuana.

5.  On 31 July 1987, members of the Killeen Police Department, Killeen, TX, executed a search warrant at the applicant's residence resulting in the applicant's arrest and the seizure of cocaine.

6.  On 31 July 1987, he was confined at the Bell County Jail, TX, and on 5 August 1987, he was released from confinement to the control of military authorities.

7.  On 10 September 1987, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct.  The immediate commander cited the specific reasons as the applicant's investigation by the U.S. Army Criminal Investigation Command, the civil action for wrongful possession and distribution of cocaine, and violation of the Texas Controlled Substance Act (delivery of cocaine).  The immediate commander also notified him that he intended to recommend his service be characterized as under other than honorable conditions.

8.  On 10 September 1987, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he was advised of the basis for the contemplated separation 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 requested consideration of his case by a separation board and a personal appearance before a separation board, and he elected not to submit a statement in his own behalf.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and 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.

9.  Subsequent to the applicant's acknowledgement, the immediate commander initiated separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200 for misconduct – commission of a serious offense – abuse of illegal drugs.

10.  On 23 October 1987, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using marijuana.  

11.  On 23 November 1987 following a notice that a board of officers had been appointed to hold a hearing to determine whether the applicant should be discharged, he again consulted with legal counsel and he was advised of the basis for the contemplated separation 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 consideration of his case by a separation board and a personal appearance before a separation board, and he elected not to submit a statement in his own behalf.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and 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.

12.  On 3 December 1987 consistent with the immediate, intermediate, and senior commanders' recommendations, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 
635-200 by reason of misconduct and directed his service be characterized as under other than honorable conditions.  On 28 December 1987, the applicant was accordingly discharged.

13.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct – commission of a serious offense – abuse of illegal drugs – with a character of service of under other than honorable conditions.  This form further confirms he completed 4 years, 3 months, and 18 days of creditable active military service and he had 5 days of lost time.

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  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 included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority might direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority might approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

16.  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.

17.  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 applicant contends that his discharge under other than honorable conditions should be upgraded for the purpose of qualifying for VA medical benefits.

2.  The evidence of record shows the applicant committed a series of serious offenses including the wrongful possession and distribution of cocaine and violation of the Texas Controlled Substance Act (delivery of cocaine).  Accordingly, his chain of command initiated separation action against him.

3.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable discharge.

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 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)                                         AR20100024899



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ABCMR Record of Proceedings (cont)                                         AR20100024899



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