IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110005103 


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 his general discharge be upgraded to honorable and his narrative reason for separation be changed.

2.  The applicant states:

* He believes his actions were the result of Post Traumatic Stress Disorder (PTSD) due to his service in the Gulf War, prior to this he had a good record 
* He did what he was asked and he was told he would get the Bronze Star for a volunteer mission
* His DD Form 214 (Certificate of Release or Discharge from Active Duty) labels him as someone he is not and prevents qualification for many jobs
* He has not been in any trouble since his discharge
* He has been married 15 years and has one child
* He was self employed until the economy wiped him out

3.  The applicant provides:

* Department of Veterans Affairs (DVA) letter, dated 17 August 2010
* DVA medical record
* VA Form 21-4138 (DVA Statement in Support of Claim)




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.  He enlisted in the Regular Army on 16 October 1989 for a period of 4 years.  He completed training and was awarded military occupational specialty 29J (Teletypewriter Equipment Repairer).  He served in Southwest Asia from 
11 December 1990 to 4 May 1991.  He attained the rank of specialist four.  

3.  On 24 June 1992, nonjudicial punishment (NJP) was imposed against the applicant for possessing marijuana.

4.  He was enrolled in the ADAPCP [Alcohol and Drug Abuse Prevention and Control Program] for diazepam and marijuana abuse on 25 June 1992.
 
5.  On 14 July 1992, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph
14-12c, for misconduct.  The unit commander cited possession of marijuana as the basis for the recommendation.

6.  On 17 July 1992, he consulted with counsel and acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also elected not to submit a statement on his own behalf.  

7.  On 4 August 1992, the separation authority approved the recommendation for discharge and directed the applicant be discharged under honorable conditions (a general discharge).

8.  On 7 August 1992, he was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct-abuse of illegal drugs.  He completed a total of 2 years, 9 months, and 21 days of creditable active service with 1 day of lost time
.

9.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* Army Service Ribbon
* National Defense Service Medal
* Southwest Asia Service Medal with three bronze service stars
* Kuwait Liberation Medal
* Overseas Service Ribbon
* Expert Marksmanship Qualification Badge (M-16 Rifle)

10.  His DD Form 214 shows the following entries in:

* Item 25 (Separation Authority) "AR [Army Regulation] 635-200, PARA [Paragraph] 14-12C" 
* Item 26 (Separation Code) "JKK" 
* Item 28 (Narrative Reason for Separation) "MISCONDUCT - ABUSE OF ILLEGAL DRUGS" 

11.  There is no evidence which shows he was diagnosed with PTSD or any mental problem prior to his discharge.

12.  He provided DVA documentation which shows he was diagnosed with PTSD in April 2010.  He was also diagnosed with bipolar disorder, type II, and that he was most recently depressed in December 2010.  

13.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  This regulation states that abuse of illegal drugs is serious misconduct.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

15.  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.
16.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation, in effect at the time, stated the reason for discharge based on separation code “JKK” is “Misconduct - Drug abuse” and the regulatory authority is Army Regulation 635-200, paragraphs 14-12a, b, or c.

DISCUSSION AND CONCLUSIONS:

1.  Although he contends his actions were the result of PTSD due to his service in the Gulf War, there is no evidence that shows he was diagnosed with any mental condition prior to his discharge.  There is also no evidence that shows he was having mental problems in 1991/1992 that interfered with his ability to perform his military duties or that this was the underlying cause for the misconduct that led to his discharge.

2.  He contends his narrative reason for separation hinders his employment opportunities.  However, discharges are not upgraded for the purpose of enhancing employment opportunities.

3.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

4.  His record of service included one NJP for possessing marijuana.  In addition, he was diagnosed with marijuana abuse.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is insufficient evidence to warrant an honorable discharge.

5.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

6.  The narrative reason for separation used in the applicant's case is correct and was applied in accordance with the applicable regulations.  Therefore, there is no basis for granting the applicant's request to change his narrative reason for separation.





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)                                         AR20110005103



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ABCMR Record of Proceedings (cont)                                         AR20110005103



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