IN THE CASE OF:	  

		BOARD DATE:	  19 July 2012

		DOCKET NUMBER:  AR20120002260 


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 be upgraded to a fully honorable discharge.

2.  The applicant states that his undiagnosed degenerative lumbar disease sustained while stationed in Alaska was the primary cause of his seeking pain relief through the use of alcohol and drugs and resulted in his discharge.  He goes on to state that he was awarded a 40% disability rating by the Department of Veterans Affairs (VA) for this condition.  He goes on to state that while in Alaska he began to experience severe back pains which no one could find the cause of.  As time passed the medications he was prescribed did nothing to relieve the pain so he resorted to alcohol and then to cocaine, which became the best pain reliever.  He also states that he was aware that it was not the right thing to do but the pain was clouding his judgment.  He further states that he had requested an early release because he was barred from reenlistment but he came up positive on a urinalysis.  He concludes by stating that he is now alcohol and drug free and has earned a Bachelor of Science degree and has been a legal assistant for 15 years.

3.  The applicant provides copies of his DD Form 214s (Certificate of Release or Discharge from Active Duty), copies of his VA Rating, a copy of his transcripts, and a résumé, and a copy of his separation proceedings.




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 served in the U.S. Navy from 27 May 1981 to 28 May 1985.  On 9 February 1988, he enlisted in the Regular Army for a period of 4 years and training as a materiel control and accounting specialist.  He completed his training at Fort Lee, Virginia and was transferred to Fort Richardson, Alaska on 29 April 1988.

3.  During the period 27 December 1989 to 29 March 1991, nonjudicial punishment was imposed against the applicant on at least five occasions for falsifying a sick slip, failure to go to his place of duty, disrespect towards a noncommissioned officer (NCO), and the wrongful use of cocaine.

4.  Additionally, a bar to reenlistment was imposed against the applicant on 
10 October 1990 based on his disciplinary record and for writing bad checks.

5.  On 15 March 1991, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct – commission of a serious offense.  He cited the applicant’s use of cocaine and his disciplinary record as the basis for his recommendation.

6.  After consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

7.  On 16 April 1991, the appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.

8.  Accordingly, he was discharged under honorable conditions on 19 April 1991 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He had served 3 years, 2 months, and 11 days of his current enlistment.

9.  There is no evidence in the available records to show that he applied to the Army Discharge review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions is 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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Accordingly, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question.

2.  The applicant's contentions and supporting documents have been noted; however, his record of service simply does not rise to the level of an honorable  discharge and his contentions are not sufficiently mitigating to warrant and upgrade of his discharge.

3.  Accordingly, there appears to be no basis to grant his request for an upgrade of his 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)                                         AR20120002260





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ABCMR Record of Proceedings (cont)                                         AR20120002260



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