IN THE CASE OF:
BOARD DATE: 3 January 2013
DOCKET NUMBER: AR20120012585
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 an upgrade of his general discharge under honorable conditions to fully honorable.
2. The applicant states his discharge was unjust and wants the injustice corrected.
3. The applicant provides a Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim).
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 March 1982. His records show he completed training and was awarded military occupational specialty 31C (Single Channel Radio Operator). The highest rank/grade he attained while serving on active duty was sergeant/E-5.
3. On 8 April 1985, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongful use of a controlled substance - cocaine.
4. On 15 April 1985, the applicant was advised he was being recommended for separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 14, and he consulted with counsel regarding the procedures and rights available to him.
5. On 30 April 1985 subsequent to receiving legal counsel, the applicant submitted a written statement to the command asking to remain on active duty. In this statement he indicated he was a good Soldier and the Article 15 he received should be enough punishment.
6. On 18 June 1985, the separation authority directed the applicant's discharge under honorable conditions. On 28 June 1985, the applicant was discharged accordingly. His DD Form 214 shows he completed 3 years, 3 months, and 13 days of creditable active military service.
7. There is no evidence in the available records which indicates an issue with the chain of custody of his random drug test.
8. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.
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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for an upgrade of his discharge was carefully considered; however, there is insufficient evidence to support his request.
2. The evidence of record shows the applicant committed a serious offense in that he wrongfully used illegal drugs. As a result, his chain of command initiated separation action against him. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. He was accordingly discharged under the provisions of Army Regulation 635-200, chapter 14, due to his misconduct.
3. His discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.
4. Therefore, based on the foregoing the applicant is not entitled 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 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) AR20120012703
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20120012585
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