BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120002175 


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 under other than honorable condtions discharge.  In addition, he argues that it was unjust for him to lose his contribution to the Montgomery GI Bill (MGIB).

2.  The applicant states:

* his discharge was unjust because it was based on one incident
* his total honorable military service was not considered during his separation proceedings
* he made some bad decisions, which caused him to be separated from active duty
* his loss of the MGIB was unfair considering he served honorably until his misconduct

3.  The applicant does not provide additional evidence in support of this 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 on 16 July 1986 and successfully completed training.  He was awarded military occupational specialty 94B (Food Service Specialist).  On 29 December 1988, he was honorably discharged for the purpose of immediate reenlistment on 30 December 1988.  On 15 November 1992, he was honorably discharged for immediate reenlistment on 16 November 1992.

3.  On 16 February 1994, based on a urinalysis test, the applicant tested positive for cocaine.  He was issued an Administrative Reprimand from the Commander, 1st Infantry Division (Mechanized), Fort Riley, KS.  The applicant elected not to provide a statement in his own behalf.

4.  On 25 May 1994, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the period 12 May 1994 through 15 May 1994 and making a false statement to an officer.

5.  On 1 June 1994, court-martial charges were preferred against the applicant for wrongful use of cocaine on or about 18 April 1994.

6.  On 7 June 1994, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He acknowledged in his request that he understood he could be discharged under other than honorable conditions, that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department Veterans Affairs (DVA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to make a statement in his own behalf.

7.  On 8 June 1994, the appropriate authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed the applicant be reduced to the lowest enlisted grade and given an under other than honorable conditions discharge. 

8.  On 26 June 1994, the applicant was discharged with an under other than honorable conditions discharge.  He completed 7 years, 11 months, and 10 days of total active service with 3 days of time lost due to AWOL.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. An under other than honorable conditions discharge is normally considered appropriate.

10.  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.

11.  Army Regulation 635-200, paragraph 3-7b, provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for upgrade of his discharge was carefully considered and it was determined there is insufficient evidence to support his request.

2.  Contrary to the applicant’s contention that his discharge was unjust because it was based on one isolated incident, evidence shows he received an administrative reprimand, one Article 15, made a false statement, and had one instance of being AWOL, prior to having court-martial charges preferred against him.  Therefore, there is no basis for this argument.

3.  It is acknowledged that the applicant served honorably up until his third term of enlistment.  However, the offense that led to his discharge outweighs his overall record of service during the period of service under review.

4.  Records clearly show the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline which include a charge preferred for wrongful use of cocaine, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or honorable discharge.

6.  The ABCMR does not grant requests for upgrade of discharge 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, granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the DVA.

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)                                         AR20120002175



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120002175



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1