IN THE CASE OF:	  

		BOARD DATE:	  19 October 2011

		DOCKET NUMBER:  AR20110006128 


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 under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, his time should have been up since he enlisted for the Delayed Enlistment/Entry Program (DEP).  He needs a discharge upgrade to receive his GI Bill benefits.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 12 August 1988.

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 U.S. Army Reserve (USAR) in the DEP on 3 October 1985 for a period of 8 years.  On 5 November 1985, he enlisted in the Regular Army for a period of 3 years.

3.  He accepted nonjudicial punishment (NJP) on:

* 1 June 1987 for wrongfully and falsely altering another Soldier’s military identification card by changing the picture on it
* 15 June 1988 for wrongfully using marijuana

4.  According to a DA Form 3822-R (Report of Mental Status Evaluation), dated 25 July 1988, the examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in any proceedings deemed appropriate by his chain of command.

5.  On 27 July 1988, the applicant's commander notified him that action was being initiated to separate him under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations), due to being a second-time drug offender.  The commander advised the applicant of his right to:

* consult with counsel
* obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action
* submit statements in his own behalf
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge

6.  On 27 July 1988, the applicant submitted a statement acknowledging he had been advised by counsel of the basis for the contemplated separation action against him.  He had been afforded the opportunity to consult with appointed counsel, or military counsel of his own choice and he waived the submission of statements in his own behalf.  He requested consulting counsel and copies of all documents that would be forwarded to the separation authority supporting the proposed separation action.



7.  On 1 August 1988, his commander recommended that he be eliminated from the service before the expiration of his term of service due to misconduct, abuse of illegal drugs, because it had been clearly established that:

	a.  He would not develop sufficiently to participate satisfactorily in further training or become a satisfactory Soldier;

	b.  The seriousness of the circumstances were such that the member's retention would have an adverse impact on military discipline, good order, and morale;

	c.  It was likely that the member would be a disruptive influence in the present or future assignments; and

	d.  The ability of the member to perform duties effectively in the future, including potential for advancement or leadership, was unlikely.

8.  His intermediate commander recommended that he be discharged and receive a General Discharge Certificate.

9.  On 5 August 1988, the appropriate authority approved the recommendation for the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 and directed he receive a General Discharge Certificate.  

10.  He was discharged on 12 August 1988 under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - Abuse of Illegal Drugs.

11.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.
  
12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a provided that an honorable discharge was a separation with honor and entitled 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.


	b.  Chapter 14 stated that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  He contends he should have been out of the Army because he enlisted under the DEP.  

	a.  He enlisted in the USAR in the DEP on 3 October 1985 for a period of 
8 years.  Therefore, had he remained in the USAR his expiration of term of service (ETS) date would have been 2 October 1993.

	b.  He enlisted in the RA on 5 November 1985 for a period of 3 years.  Therefore, his ETS date was established as 4 November 1988.

2.  In either case, he was processed for discharge under the provisions of chapter 14 of Army Regulation 635-200 and issued a general under honorable conditions discharge prior to his ETS date.

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

4.  He accepted NJP on two occasions.  On one occasion it was for wrongful use of marijuana.  Therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His entire record of service was considered.  There is no record or documentary evidence of acts of valor.  

5.  In view of the above, there is an insufficient basis to upgrade the applicant's discharge to an honorable or a general discharge.

6.  The ABCMR does not upgrade properly-issued discharges solely to make an individual eligible for benefits from another agency.  The Department of Veterans Affairs (VA) determines eligibility for VA benefits.  He should contact that agency concerning eligibility requirements.


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)                                         AR20110006128



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110006128



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1