BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110002295 


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 general discharge to an honorable discharge.

2.  The applicant states the Department of Veterans Affairs (VA) upgraded his discharge to honorable and it should be officially noted on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He further states that if his status is upgraded, he will be eligible for jobs and other types of assistance that he was not eligible for before.

3.  The applicant provides:

* a letter from the National Personnel Records Center (NPRC), dated
29 October 2010
* a letter from the VA, dated 30 November 2010
* his DD Form 214

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 1 October 1986.  He completed training in military occupational specialty 31C (single channel radio operator).

3.  The applicant's record shows he was counseled on at least nine separate occasions between 17 June and 31 July 1987 for:

* wrongfully using marijuana
* failing to go at the time prescribed to his appointed place of duty
* his inability to adapt to a military environment
* substandard personal appearance
* substandard personal hygiene
* discreditable personal behavior
* failing to meet the company "ruck march" standards
* school performance (lack of motivation)

4.  On 23 June 1987, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for twice failing to go to at the time prescribed to his appointed place of duty.  He also accepted NJP on 20 July 1987 for wrongfully using marijuana.

5.  On 4 August 1987, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 14-12b, for misconduct - abuse of illegal drugs.  He acknowledged receipt of the notification and after consulting with counsel, he elected to submit a statement in his own behalf.  However, the applicant's statement is not contained in the available record.

6.  On 7 August 1987, the separation authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.

7.  On 17 August 1987, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, chapter 14-12b, by reason of misconduct - drug abuse, with a general discharge.  He completed 10 months and 17 days of creditable active service.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's statute of limitations.

9.  The applicant submits a letter from the VA, dated 30 November 2010, which shows the entry:

Military Information:

	Your character(s) of discharge and service date(s) include:

		Army, Honorable, 01-Oct-1986 - 17 Aug 1987

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes 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.  

	b.  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.  The VA does not have the authority to upgrade discharges.  The fact that the VA letter states his character of his service was honorable is not a sufficient basis for upgrading his discharge by this Board.

2.  His record shows he was discharged under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct - drug abuse.  Although an under other than honorable conditions discharge was normally considered appropriate it appears his overall record of service was considered by the separation authority who directed the applicant be separated with a general discharge.


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

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110002295



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ABCMR Record of Proceedings (cont)                                         AR20110002295



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