IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20110024850 


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.

2.  He states 29 years have passed and he would like to receive full benefits for his time served on active duty.

3.  He provides no additional documentation.

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.  His military records show he enlisted in the Regular Army on 3 December 1982.  He completed training and was awarded the military occupational specialty of 76P (Materiel Control and Accounting Specialist).

3.  He reenlisted in the Regular Army on 3 December 1985 and on 6 June 1990.  The highest rank/grade he held was specialist four/E-4.

4.  He accepted nonjudicial punishment on 6 January 1992 for wrongfully using cocaine during the period 18 November to 3 December 1991.

5.  On 10 January 1992, his commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, due to wrongful use of cocaine.  He was advised of his rights.

6.  A DA Form 3822-R (Report of Mental Evaluation) shows the applicant was seen for a mental status evaluation as part of an examination for administrative discharge from the Army.  The report indicates there was no thought disorder noted and he was psychiatrically cleared for any administrative action deemed appropriate by the command.

7.  He was advised by consulting counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200, chapter 14, and its effects, the rights available to him, and the effects of a waiver of his rights.  He chose not to submit a statement on his own behalf.  He waived his rights in conjunction with this consultation.

8.  His complete discharge packet is not contained in his records.  However, on 9 March 1992, he was discharged under the provisions of Army Regulation 
635-200, paragraph 14-12c, misconduct-commission of a serious offense.  He was given a general discharge.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 9 years, 3 months, and 7 days of active military service.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct because of commission of a serious military or civil offense, if the specific circumstances of the offense warranted separation and a punitive discharge was authorized for the same or a closely related offense under the Manual for Courts-Martial.  Abuse of illegal drugs is serious misconduct.  Separation action normally would be based upon commission of a serious offense.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.

11.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. 

DISCUSSION AND CONCLUSIONS:

1.  His records show he received NJP for wrongfully using cocaine.  He was discharged for the commission of the serious offense of wrongfully using cocaine.   

2.  The available evidence shows his rights were protected throughout the discharge process.  Based on his commission of a serious offense, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  A general discharge would have been warranted based on his misconduct.

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 above, there is an insufficient basis to upgrade his discharge to an honorable discharge.

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)                                         AR20110024850



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ABCMR Record of Proceedings (cont)                                         AR20110024850



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