IN THE CASE OF:	  

		BOARD DATE:	  6 August 2013

		DOCKET NUMBER:  AR20130001310 


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 under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states he was told after 6 months his discharge would be upgraded to a general, under honorable conditions discharge but it never was.  This error causes him great embarrassment, prevents him from receiving treatment at any Department of Veterans Affairs (VA) medical center, and would prevent him from acquiring a government job with a government agency or as a contractor.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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’s records show he enlisted in the Regular Army on 3 November 1987 and he held military occupational specialty 93F (Field Artillery Meteorological Crewmember).  He was assigned to the 42nd Field Artillery Brigade, Germany, on 18 April 1988.  He was promoted to the rank/grade of private first class/E-3 on 1 November 1988.

3.  On 6 February 1990, he was convicted by a general court-martial of two specifications of wrongfully distributing marijuana in the hashish form and one specification of wrongfully using marijuana.

4.  He was sentenced to the forfeiture of $480.00 of pay per month for 6 months, restriction for 2 months, hard labor without confinement for 3 months, and reduction to private/E-1.

5.  On 6 June 1990, he was arrested by the military police for speeding and driving while intoxicated (DWI).  He was subsequently enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

6.  On 19 August 1990, his immediate commander was notified by the ADAPCP clinical director that the applicant tested positive on a urinalysis test for tetrahydrocannabinol (THC).

7.  On 4 September 1990, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for the commission of a serious offense.  Specifically, he cited the applicant's general court-martial for distributing hashish and using marijuana and his positive urinalysis test for THC.  The commander stated he was recommending a discharge under other than honorable conditions.

8.  On 4 September 1990, the applicant acknowledged receipt of the commander's intent to separate him.  On 4 September 1990, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  He subsequently waived his right to have his case heard by an administrative separation board with the condition that he be given a general discharge.

9.  On 5 September 1990, his immediate commander recommended disapproval of the conditional waiver and stated due to the nature of his offenses, a general discharge would not be adequate.

10.  On 6 September 1990, his senior commander recommended disapproval of the conditional waiver and stated that due to the very serious offenses his (the applicant's) record of service could not be characterized as anything other than under other than honorable conditions.

11.  On 16 September 1990, the approving authority disapproved his conditional waiver and he was directed to appear before an administrative separation board.

12.  On 4 October 1990, he consulted with legal counsel and he was advised that if he waived his right to a hearing before a board, he could receive an under other than honorable conditions discharge.  He was also advised that he could expect to encounter substantial prejudice in civilian life if he received a general or under other than honorable conditions discharge and that he may be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he understood that if he received a discharge with a character of service which was less than honorable, he may apply to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, he realized that an act of consideration by either board did not imply that his discharge would be upgraded (emphasis added).  He subsequently waived his right to an administrative board and declined to submit a statement in his own behalf.

13  On 15 October 1990, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense, with an under other than honorable conditions characterization of service.  On 29 October 1990, he was discharged accordingly.

14.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense, with an under other than honorable conditions characterization of service.  He completed 2 years, 11 months, and 27 days of net active service.

15.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  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 abuse of illegal drugs.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

17.  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.

18.  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 evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the general court-martial he received for two specifications of distributing hashish and for using marijuana.  He was subsequently arrested for DWI and tested positive on a urinalysis for THC.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

3.  Notwithstanding his contention that he was told his discharge could be automatically upgraded after 6 months, the Army has never had a policy of automatically upgrading discharges.  In addition, the evidence of record confirms he was advised that he could request an upgrade to his discharge but it did not mean that it would be upgraded. 

4. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20130001310





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130001310



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1