IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110005161 


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 general discharge to an honorable discharge.

2.  The applicant states he was told his discharge would be automatically upgraded to fully honorable after he was out of the military for a while.  He also states, had his situation been investigated at the time, he would still be in the military.  He adds that an upgrade of his discharge will allow him to obtain veteran's benefits.

3.  The applicant provides no additional documentary 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 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 for a period of 4 years on
5 September 2000.  Upon completion of training he was awarded military occupational specialty 77F (Petroleum Supply Specialist).

3.  The applicant was promoted to specialist (E-4) on 1 October 2002.

4.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on two separate occasions, as follows:

   a.  On 28 July 2003, for behaving disrespectfully towards a commissioned officer, willfully disobeying a lawful order from a commissioned officer, and feigning mental derangement for the purpose of avoiding service as an enlisted Soldier; and

   b.  On 22 September 2003, for wrongfully using Tetrahydrocannabinol (THC), a Schedule 1 controlled substance between on or about 22 June and 22 July 2003.
   
5.  The applicant was reduced to private (E-1) on 19 September 2003.

6.  On 24 September 2003, the applicant's commander initiated action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12c, based on commission of a serious offense.

	a.  The reasons for the proposed action were the applicant's wrongful use of a controlled substance (THC), being disrespectful towards a commissioned officer, disobeying a commissioned officer, and feigning mental derangement; and

   b.  The commander advised the applicant he was recommending that he receive a general discharge.  He also advised him of his rights.

7.  On 26 September 2003, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  The applicant:

	a.  waived his rights and elected not to submit statements in his own behalf;

	b.  was advised he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him;
	c.  was also advised that as a result of the issuance of a discharge under other than honorable conditions he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life;

	d.  acknowledged he understood he may make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrade of his discharge; however, he also understood that an act of consideration by either board did not imply that his discharge would be upgraded; and

	e.  placed his signature on the document.

8.  The intermediate commander recommended approval of the applicant's separation action.

9.  On 9 October 2003, the separation authority approved the recommendation for discharge and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for commission of a serious offense, and issuance of a General Discharge Certificate.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 21 October 2003 under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct [based on commission of serious offense] with his service characterized as under honorable conditions (general discharge).  He completed 3 years, 1 month, and 17 days of net active service.

11.  The applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the ADRB requesting an upgrade of his discharge based on a review of his records.  On
26 October 2005, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct the issuance of a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

	b.  Chapter 3, 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 applicant contends his general discharge should be upgraded to an honorable discharge because he was told his discharge would automatically be upgraded after he was out of the military for some unspecified period of time.  He also contends he is making this request so that he may be able to obtain veteran's benefits.

2.  Records show the applicant acknowledged he understood he could make application to the ADRB or the ABCMR for an upgrade of his discharge; however, he also acknowledged that he understood an act of consideration by either board did not imply that his discharge would be upgraded.  There is no evidence of record and the applicant provides insufficient evidence to show he was advised his discharge would automatically be upgraded to an honorable discharge after he was discharged from the Army.  Thus, the applicant's contention is not supported by the evidence of record.

3.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for commission of a serious offense, was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the reasons for his discharge were appropriate and equitable.

4.  Records show the applicant received NJP on two separate occasions and he was reduced to private (E-1).  In addition, he completed less than 3 years and
2 months of his 4-year active duty obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.
5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veteran's benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for benefits should be addressed to the Department of Veterans Affairs.

6.  In view of all 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)                                         AR20110005161



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ABCMR Record of Proceedings (cont)                                         AR20110005161



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