BOARD DATE: 7 June 2011
DOCKET NUMBER: AR20100027041
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 that his general discharge be upgraded to an honorable discharge.
2. The applicant states he has never applied for any type of service benefits and would like for the Board to consider upgrading his discharge to give him a little dignity for joining the Army.
3. The applicant provides no additional evidence 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. His military records show he enlisted in the Regular Army on 30 April 1991. He completed training and was awarded the military occupational specialty of medical specialist. The highest grade he held was pay grade E-2.
3. He accepted nonjudicial punishment on 6 January 1992 for wrongfully using a controlled substance, diazepam, and on 13 March 1992 for, without authority, failing to go at the time prescribed to his appointed place of duty.
4. On 25 March 1992, his commander notified him that he was initiating action to separate him for commission of the serious offenses of wrongfully using a controlled substance, diazepam, and for, without authority, failing to go at the time prescribed to his appointed place of duty.
5. He was advised by consulting counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense (drug abuse), and its effects, the rights available to him, and the effect of a waiver of his rights. He waived his rights in conjunction with this consultation.
6. On 25 March 1992, the separation authority directed his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, and that he be given a general discharge.
7. On 6 April 1992, he was discharged accordingly. The DD Form 214 he was issued shows he completed 11 months and 7 days of active military service.
8. There is no indication he 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. Chapter 14 of the regulation deals with separation for various types of misconduct, which includes (commission of a serious offense) drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier'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.
DISCUSSION AND CONCLUSIONS:
1. His record shows he accepted nonjudicial punishment for wrongfully using a controlled substance, diazepam, and for, without authority, failing to go at the time prescribed to his appointed place of duty and his reason for separation was misconduct, abuse of illegal drugs.
2. Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an honorable discharge.
3. The available evidence confirms his rights were protected throughout the discharge process.
4. In view of the foregoing, there is an insufficient basis for granting his request.
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.
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