IN THE CASE OF:	  

		BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100029576 


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 an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that he had some personal issues to deal with such as drugs and alcohol.  He states he deserved the discharge he was given due being absent without leave (AWOL) and writing bad checks because these actions were his fault.  He further states that if he had not been on drugs and alcohol he is sure his attitude and thinking would have been different.  He states he has changed and has had 14 years of counseling since 1990.  He also states that his feet have gotten a lot worse since he was discharged and he is trying to get his service disability claim started.

3.  The applicant provides a letter of support, a letter regarding his treatment for alcohol and drug addiction, Department of Veterans Affairs Progress Notes, a DA Form 446 (Alcohol and Drug Abuse Prevention and Control Program Client Progress Report), a DD Form 689 (Individual Sick Slip), other miscellaneous alcohol and drug rehabilitation documents, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and miscellaneous medical documents.

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.  His military records show he served honorably in an active duty status from
25 April 1978 to 24 April 1981 and from 29 November 1984 to 3 April 1985.

3.  On 2 December 1988, he enlisted in the Regular Army for a period of 4 years.  He was awarded military occupational specialty 12B (Combat Engineer).  The highest grade he held was pay grade E-4.

4.  The applicant accepted nonjudicial punishment (NJP) on the following dates:

   a.  On 29 December 1990, for willfully disobeying a lawful order given by a noncommissioned officer.

   b.  On 12 August 1991, for intentionally, wrongfully writing checks on six occasions to make purchases at the Fort Campbell Exchange when he had insufficient funds in his Fort Campbell Credit Union account.

5.  On 16 September 1991, he was charged with the wrongful use of cocaine, a controlled substance.

6.  His DA Form 2-1 (Personnel Qualification Record) shows he was confined by civil authorities from 20 September to 1 October 1991.

7.  On 3 October 1991, he consulted with counsel and voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  He acknowledged he was making the request of his own free will and had not been subjected to coercion with respect to his request for discharge.  He further acknowledged he understood that by submitting his request for discharge he was admitting to being guilty of the charge(s) against him or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood that if his 


discharge request was approved he might be discharged under conditions other than honorable.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He chose not to make a statement on his own behalf.

8.  On 4 October 1991, the separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed that he be given an under other than honorable conditions discharge.

9.  On 10 October 1991, he was discharged accordingly.  The DD Form 214 he was issued shows he completed a total of 2 years, 9 months, and 27 days of active service this period and he had lost time from 20 September to 1 October 1991.  He also had 3 years, 4 months, and 5 days of total prior active service.

10.  He provided a DA Form 5181-R (Screening Note of Acute Medical Care), dated 10 July 1991, indicating he had an ingrown nail on his right big toe and he complained of sore toes and stated that he possibly had bunions.  A DA Form 5181-R, dated 11 July 1991, shows during a follow-up exam his great toe nail x-ray indicated his toe was healing well with no sign of infection. 

11.  He also provided a DD Form 689, dated 27 September 1985, that shows the applicant indicated in the Remarks section of this form that he needed to go to an Alcoholics Anonymous (AA) /treatment program.  

12.  On 8 January 1996, the Army Discharge Review Board denied his request for an upgrade of his under other than honorable conditions discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this regulation in effect at the time provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

14.  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.

15.  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 discharge with a characterization of service 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 received NJP on two occasions, he was confined by civil authorities, and he was charged with the wrongful use of cocaine.  He voluntarily requested discharge to avoid a trial by court-martial.  The fact that the applicant abused drugs diminished the quality of his service during the period under review below that meriting a general or an honorable discharge; he violated the Army's drug abuse policies. 

2.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory and insufficient for upgrading his discharge.

3.  The evidence shows he was properly and equitably discharged in accordance with regulations in effect at the time.  He voluntarily requested discharge.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

4.  The ABCMR does not upgrade discharges solely for the purpose of making an applicant eligible for VA medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  In view of the foregoing, there is no basis for granting the requested relief.



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)                                         AR20100029576



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ABCMR Record of Proceedings (cont)                                         AR20100029576



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