IN THE CASE OF:	  

		BOARD DATE:  17 September 2013

		DOCKET NUMBER:  AR20130001899 


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 correction of the dates of service shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  He states he served in the Army from 9 July 1985 to 21 July 1988 and received an honorable discharge.  He states he served in Korea from 1986 to 1987.  He indicates he was deemed ineligible for Department of Veterans Affairs (VA) medical benefits due to his incorrect DD Form 214.  He states he needs medical attention and has no insurance for the first time in his life.

3.  He provides no documentary evidence in support of his application.

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.  On 9 October 1984, the applicant enlisted in the U.S. Army Reserve Delayed Enlistment Program pending his enlistment in the Regular Army on 10 July 1985.  On 10 July 1985, he enlisted in the Regular Army for a period of 4 years.  

3.  He completed initial entry training, and he was awarded military occupational specialty 16P (Chaparral Short Range Missile Crewmember).  

4.  On 2 May 1986, he accepted nonjudicial punishment (NJP) imposed by his battalion commander under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for:

* on or about 6 March 1986, wrongfully using marijuana at Fort Ord, CA
* on or about 18 March 1986, sleeping on post in the Republic of Korea 
* on or about 20 April 1986, failing to go at the prescribed time to his appointed place of duty at Fort Ord, CA

5.  On 30 May 1986, he accepted NJP imposed by his acting battalion commander under the provisions of Article 15, UCMJ, for wrongfully using marijuana at Fort Ord, CA, on or about 24 April 1986.

6.  On 3 July 1986, his commander notified him he was initiating action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, to release him from active duty for transfer to the Individual Ready Reserve (IRR) to complete his statutory or contractual obligation, if any, or discharge him from the U.S. Army.  His commander informed him the least favorable characterization of service he could receive would be under honorable conditions.  The commander informed the applicant the specific basis for the recommendation was that the applicant had received two field grade Article 15s for wrongful use of marijuana, on 2 and 30 May 1986.  The commander advised him of his rights.  

7.  On 3 July 1986, he consulted with legal counsel, who advised him of the basis for his contemplated separation and the effect of a waiver of his rights.

8.  After consulting with counsel, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and counsel.  He elected not to submit statements in his own behalf.  

9.  On 9 July 1986, the separation authority approved the recommendation to eliminate the applicant from the service under the provisions of Army Regulation 635-200, paragraph 14-12c.  The separation authority directed that the applicant be issued a General Discharge Certificate.  The separation authority determined transfer to the IRR would not be appropriate due to the applicant's lack of potential for further service under full mobilization.

10.  On 21 July 1986, he was discharged at Fort Ord, CA, in accordance with the separation authority's directions by reason of misconduct – drug abuse.  He completed 1 year and 12 days of net active service this period.  His DD Form 214 shows in:

* item 12a (Date Entered [Active Duty] This Period) – 10 July 1985
* item 12b (Separation Date This Period) – 21 July 1986
* item 12f (Foreign Service) – no foreign service

11.  His record is void of documentation showing the duration of any service he may have had in Korea.  

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for correction of the dates of service shown on his DD Form 214.  

2.  He claims to have served honorably from 9 July 1985 to 21 July 1988.  His record shows otherwise.  

3.  His record shows he entered active duty on 10 July 1985 and he received a general discharge under honorable conditions on 21 July 1986.  These dates are properly recorded on his DD Form 214, and there is no documentary evidence showing an error in those dates.  

4.  His claim to have served in Korea from 1986 to 1987 is noted.  A record of NJP indicates he may have served briefly in Korea, but the available documentation is insufficient to establish the duration of any such service.  Clearly, he did not serve in the Army in Korea in 1987 after his discharge in 1986.

5.  In view of the foregoing, there 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)                                         AR20130001899





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ABCMR Record of Proceedings (cont)                                         AR20130001899



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