IN THE CASE OF:	  

		BOARD DATE:	  26 July 2012

		DOCKET NUMBER:  AR20120000061 


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 to an honorable discharge.

2.  The applicant states he put himself in grave physical danger in order to save some female Soldiers when their fireguard fell asleep and their stove exploded.

3.  The applicant provides self-authored statements.

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.  After having had prior enlisted service in the Army National Guard, the applicant enlisted in the Regular Army on 30 October 1986.  He completed 


training and he was awarded military occupational specialty 75B (Personnel Administrative Specialist).  The highest rank/grade he attained while on active duty was private (PV2)/E-2.

3.  A DA Form 2496 (Disposition Form), subject:  Request for Court-Martial Packet, dated 30 April 1987, indicates the applicant provided a urine specimen that was tested on 9 April 1987.  Presumably, he tested positive resulting in the request for a court-martial packet.

4.  On 5 May 1987, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for:

* knowingly and wrongfully using some amount of marijuana on 9 April 1987
* stealing meals from 2 dining facilities on 24 April 1987, of a value of about $90.00, the property of the U.S. Army

5.  On 12 May 1987, the applicant was notified by his commander of the intent to initiate separation action against him under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-12c for misconduct – abuse of illegal drugs.

6.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 2 June 1987, that shows no mental illnesses, he was mentally responsible, and he met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

7.  On 4 June 1987, having been advised by consulting counsel of the basis for the contemplated separation action, the applicant acknowledged receipt of the notification, waived his rights for consideration by an administrative separation board and a personal appearance before an administrative separation board.  He understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued.  He also understood there was no automatic upgrading or review by any government agency, and that he must apply to the Army Discharge Review Board (ADRB) or the ABCMR for a review of his discharge.

8.  On 8 June 1987, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 14, paragraph 14-12c and directed the issuance of a General Discharge Certificate.  On 18 June 1987, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 14, 


paragraph 14-12c by reason of misconduct – abuse of illegal drugs.  He completed 7 month and 19 days of creditable active service during this period.

9.  The applicant applied to the ADRB for an upgrade of his discharge.  On
14 June 1997, the U.S. Army Reserve Personnel Center, St. Louis, MO, informed the applicant that the ADRB, having careful consideration of his military records and all other available evidence, denied his appeal.  However, the ADRB determined the reason and authority for his discharge should be changed.  As a result a result his original DD Form 214 for the period ending 18 June 1987 was voided and he was reissued a DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2) by reason of misconduct.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Those in pay grades below E-5 could also be processed after a first drug offense and must have been processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his general discharge was carefully considered.

2.  The evidence of record confirms the applicant's commander notified him of the intent to separate him with a general discharge.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

3.  The facts show his discharge was based on his indiscipline.  His overall service did not meet the standard required for an honorable discharge.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.
4.  Although the issuance of an under other than honorable conditions discharge was normally considered appropriate based on the reason and authority for his separation, it appears his immediate commander and the separation authority considered his service record and recommended and approved a general discharge.

5.  Based on the foregoing, there is an insufficient evidentiary basis for granting the applicant a fully 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)                                         AR20120000061



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ABCMR Record of Proceedings (cont)                                         AR20120000061



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