IN THE CASE OF:	   

		BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20120004397 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD).

2.  The applicant states, in effect, his request is for job application purposes, veterans benefits, and he is currently living in a homeless shelter.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Letter from the Army Review Boards Agency, dated 10 January 2012 

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 21 July 1993, and he failed to complete military occupational specialty (MOS) 98G (Cryptologic Linguist Basic Russian) training prior to being discharged on 14 October 1994. 

3. The applicant's record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions for the offenses indicated:

* 8 April 1994, for failure to obey a lawful order
* 3 May 1994, wrongful use of marijuana
* 2 August 94, possession of a controlled substance

4.  On 3 August 1994, the unit commander notified the applicant that separation action was being initiated to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, by reason of misconduct - commission of a serious offense.  The commander informed the applicant that he would recommend his service be characterized as UOTHC.

5.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effect.  He completed an election of rights in which he elected consideration of his case by a board of officers and representation by counsel.  

6.  On 29 September 1994, the applicant waived his right to an administrative separation board.

7.  On 29 September 1994, the separation authority approved the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200, paragraph 14-12c, and directed he receive a UOTHC discharge.  On 14 October 1994, the applicant was discharged accordingly.

8.  The applicant's DD Form 214 shows he held the rank of private/E-1 on the date of his discharge and he completed 1 year, 2 months, and 24 days of active military service during the period under review.


9.  There is no indication 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 provides the policies, standards, and procedures for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  It states a UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.

11.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was discharged for misconduct/
commission of a serious offense which included failure to obey a lawful order, wrongful use of marijuana, and possession of a controlled substance.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  Based on his record of misconduct, specifically his illegal drug use, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or veterans' benefits.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


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)                                         AR20120004397



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ABCMR Record of Proceedings (cont)                                         AR20120004397



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