IN THE CASE OF:
BOARD DATE: 25 October 2011
DOCKET NUMBER: AR20110008135
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 discharge under other than honorable conditions be upgraded to general under honorable conditions.
2. The applicant states:
* his discharge was supposed to be temporary for 2 years and the status was to be changed to general, but the change was never made
* the discharge upgrade will assist him with gainful employment
* he made the necessary steps to correct his life and this is the most important one
3. The applicant provides:
* Certificate of Restoration of Civil Rights
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
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 12 May 1987 for a period of 3 years and 14 weeks. He completed training and was awarded military occupational specialty 11B (infantryman).
3. The facts and circumstances surrounding his discharge are not contained in the available records. However, his DD Form 214 shows he was discharged under other than honorable conditions on 7 June 1989 for misconduct (abuse of illegal drugs) under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c. He completed a total of 2 years and 26 days of creditable active service.
4. There is no evidence in the available records that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs. The issuance of a discharge under other than honorable conditions was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the member's overall record.
6. Army Regulation 635-200, paragraph 3-7b, states 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.
7. The U.S. Army does not have nor has it ever had a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.
DISCUSSION AND CONCLUSIONS:
1. He contends the character of his discharge was temporary and was supposed to be changed to a general discharge after 2 years. However, a discharge upgrade is not automatic.
2. A discharge is not upgraded for the purpose of enhancing employment opportunities.
3. In the absence of evidence to the contrary, it must be presumed his separation processing was administratively correct and in conformance with applicable regulations. Without the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service. As a result, there is no basis for granting the applicant's request.
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 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) AR20110008135
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