BOARD DATE:	  29 August 2013

		DOCKET NUMBER:  AR20130001241 


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, in effect:

* upgrade of his general discharge to an honorable discharge
* change of his narrative reason for separation from "Misconduct -Commission of a serious offense" to "Hardship"

2.  The applicant states he was 19 years old when his father decided to divorce his mother and, as a result, she attempted suicide.  The Army temporarily reassigned him to Fort McPherson, GA, for 60 days, to allow him to care for his
7-year old sister.  He was severely depressed during his temporary assignment because he had to leave his unit.  He began suffering from mental health issues but he still had to take care of his sister and mentally ill mother.  He was introduced to cocaine during this reassignment.  When he returned to his unit his platoon sergeant noticed he was having problems and recommended he request a compassionate reassignment.  The compassionate reassignment was granted. He saw a psychologist one time for substance abuse problems but never for grief problems to help him cope with his family issues.  His discharge from the Army made him feel abandoned and caused him to develop post-traumatic stress disorder (PTSD), a condition from which he still suffers.

3.  The applicant provides:

* his high school/preparatory school transcript, dated 15 July 1983
* 
an Army Chief of Staff memorandum to the Soldiers and civilians of the U.S. Army, dated 16 April 1984, dated 16 April 1984
* a reduction to private (PV1)/E-1 DA Form 4187 (Personnel Action), dated 2 July 1986
* a DA Form 2496 (Disposition Form), subject:  Request for Evaluation, dated 10 November 1986
* his separation packet initiated on 26 November 1986
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Summary of earnings from 1981 through 2010, dated 29 October 2012
* U.S. Department of Health and Human Services (HHS) Poverty Guidelines from 1982 through 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 29 January 1985 and held military occupational specialty 11C (Indirect Fire Infantryman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  His DA Form 2-1 shows that after completing one station unit training he was assigned to:

* Company A, 21st Infantry Battalion, 7th Infantry Division, Fort Ord, CA from 3 June 1985 to 9 July 1986
* Headquarters, U.S. Army Garrison, Fort McPherson, GA from 16 July 1986 to 19 December 1986

4.  His record contains two DA Forms 5180-R (Urinalysis Custody and Report Record) which show on:

* 15 February 1986, his urine sample tested positive for the presence of tetrahydrocannabinol (THC)
* 19 May 1986, his urine sample tested positive for the presence of THC and cocaine

5.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 3 March 1986, for wrongfully using marijuana
* 1 July 1986, for wrongfully using cocaine and marijuana
* 8 August 1986, for disobeying the direct order of a noncommissioned officer and failing to report as directed

6.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 14 November 1986, that shows he was being examined because he was being considered for a misconduct discharge.  The medical official indicated the applicant's behavior was normal, he was fully alert and fully oriented, his mood or affect was unremarkable, his thinking process was clear, his thought content was normal, and his mood was good.  The medical official indicated the applicant had the mental capacity to understand and participate in proceedings, was mentally responsible, and met medical retention standards.  The medical official further stated the examination was essentially unremarkable and the applicant appeared to have a positive attitude and no evidence of a thought disorder.

7.  On 26 November 1986, he was notified by his immediate commander of the intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12d, for abuse of illegal drugs.

8.  On 26 November 1986, he acknowledged he had been advised by his counsel of the basis for the contemplated separation action under Army Regulation 635-200, chapter 14, and its effects; of the rights available to him; and of the effect of any action taken by him to waive his rights.

9.  On 16 December 1986, the discharge authority waived further rehabilitation efforts, approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of a General Discharge Certificate.

10.  On 19 December 1986, he was discharged accordingly.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, 

chapter 14, by reason of misconduct – commission of a serious offense.  It also shows he completed 1 year, 10 months, and 21 days of creditable active service.

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 deals with separation for various types of misconduct, including 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 is 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

	b.  Chapter 6 (Separation because of dependency or hardship), in effect at the time, stated that enlisted members could be discharged or released from the Army because of genuine dependency or hardship.  A hardship exists when in circumstances not involving death or disability of a member of the enlisted person's family, his separation from the Service will materially affect the care or support of his family by alleviating undue and genuine hardship.  Separation from the service of enlisted personnel because of dependency or hardship was granted when all the following circumstances existed:  (1) Conditions have arisen or have been aggravated to an excessive degree since entry on active duty;
(2) Conditions were not of a temporary nature; (3) Every reasonable effort was made by the enlisted person to alleviate the dependency or hardship conditions without success; and (4) Discharge or release from active military service of the enlisted person was the only readily available means of eliminating or materially alleviating the dependency or hardship conditions.  Separation from the Service of enlisted personnel because of dependency or hardship must be requested in writing by the enlisted person.

	c.  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 contends that his general discharge should be upgraded to an honorable discharge and his narrative reason for separation should be changed to "Hardship" vice "Misconduct - Commission of a serious offense."

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The evidence of record shows he consulted with counsel and he was advised of the basis for the separation action.

3.  He received a pre-separation mental status evaluation that noted his mental status was within normal limits.  Additionally, there are no records that show he suffered from, was diagnosed with, or treated for any mental illness during his military service.

4.  His record of misconduct includes several instances of NJP for the use of illegal drugs.   Based on his commission of a serious offense, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Although an under other than honorable conditions discharge was normally appropriate for Soldier discharged for misconduct, it appears the separation authority considered his overall record of service when he directed the issuance of a general discharge.

5.  There is no evidence of record and he did not provide substantiating evidence that shows he was undergoing a family hardship significant enough to merit a discharge for hardship.  Furthermore, there is no evidence that the applicant voluntarily requested separation for hardship.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief in this case.

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)                                         AR20130001241



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ABCMR Record of Proceedings (cont)                                         AR20130001241



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