IN THE CASE OF:	   

		BOARD DATE:	  19 November 2013

		DOCKET NUMBER:  AR20130005319 


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, the mother of a deceased former service member (FSM), requests:

* his under other than honorable conditions discharge be upgraded to an honorable or a general, under honorable conditions discharge
* correction of item 14 (Military Education) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the Airborne Course 

2.  The applicant states:

	a.  While the FSM was serving in Korea his sister became seriously ill and was not expected to survive.  He was sent home from Korea to be with his family during this emergency.  When he was supposed to return to Korea, he was told that instead he would be stationed at Fort Benning, GA. 

	b.  As far as his parents knew, he was serving honorably and doing well prior to his time at Fort Benning, GA.  The applicant does not know what occurred the last few months before the FSM's discharge.  However, it became apparent that he was having problems in his new unit, some of which they (his parents) attribute to him not being able to return to his unit in Korea.  They are hoping to have his discharge upgraded so he can be interred at Great Lakes National Cemetery, Holly, MI. 



	c.  The applicant believes an error occurred when the Airborne Course was left off the FSM's DD Form 214.

3.  The applicant provides the FSM's DD Form 214, a certificate of training, a death certificate, and four statements of support.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 26 March 1991 and he held military occupational specialty 31U (Signal Support Systems Specialist).  He served in Korea from 3 October 1991 to 11 August 1992.  This was 10 months and 9 days of the normal tour length of 12 months.

2.  On 2 September 1992, he was assigned to the Replacement Detachment, Fort Benning, GA.  On 8 September 1992, he was assigned to Headquarters  and Headquarters Detachment (HHD), 13th Corps Support Battalion, Fort Benning GA.

3.  On 21 May 1993, his immediate commander was notified that the FSM had tested positive for marijuana on a unit urinalysis test and it required referral of the FSM to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  The specific dates of his enrollment in ADAPCP are not known.

4.  On 16 July 1993, he was counseled by his commander for testing positive for marijuana on the 30 June 1993 unit urinalysis test.  The commander informed him he could be subject to involuntary separation if that behavior continued and stated he may receive a discharge characterized as either honorable, under honorable conditions, or under other than honorable conditions.  An involuntary separation could have an effect on his Veterans benefits, cause undue hardship in civilian life, and could be looked upon unfavorably by potential employers.

5.  On 21 July 1993, the FSM received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana between 31 May and 30 June 1993.

6.  On 5 August 1993, he was counseled by his immediate supervisor for possessing a controlled substance (marijuana) on 29 July 1993.

7.  On 24 August 1993, he was notified by his immediate commander that discharge action was being initiated against him based on his positive urinalysis on 30 June 1993 and his possession of a controlled substance on 29 July 1993.  

8.  In a response to the separation notification, dated 27 August 1993, the FSM, in part, stated:

	a.  He entered the Army in March 1991 and he was the honor graduate in his advanced individual training class.  His first assignment was at Camp Casey, Korea, where he had many responsibilities while he held the rank of private first class.  He received three Army Achievement Medals, was recommended for an Army Commendation Medal, and he had pride in what he was doing; being part of a motivated unit with many professional challenges.

	b.  He arrived at Fort Benning in September 1992 and his duties changed dramatically.  They were primarily maintenance and issuing equipment and supplies.  It was a far cry from his past duties and he looked for challenging training opportunities.  He went through the Combat Lifesaver's Course and the Airborne School.

	c.  He was assigned to Fort Benning after emergency leave, having had a family member die.  He met a girl, fell in love, and they became engaged.  She got pregnant and they both looked forward to marriage and the baby's birth.  At the same time, his sister had a liver transplant which caused him stress.  His fiancé went through Soldier Readiness Processing and received shots that had deadly consequences for the baby.  She said the baby was irreparably injured and would be born dead or severely deformed.  She deployed anyway; the relationship was ruined and the engagement was broken.

	d.  He started to drink heavily, desperate for an escape.  Under bad judgment and while drunk, he smoked marijuana.  He wished his pleas for help from his chain of command would have been met with some assistance.  He accepted the Article 15 for a positive urinalysis, hoping he could leave the service and go back to school and make a decent living.  During the month that he waited for the chapter paperwork, he was busted for allegedly selling marijuana to an undercover agent.  At that point he hoped he would be recommended for an honorable discharge based on his past achievements and despite his recent problems.

9.  It appears the command placed the FSM's separation action on hold pending the outcome of court-martial charges pending against him.

10.  On 28 October 1993, he pled guilty to and was convicted by a summary court-martial of one specification each of:

* wrongfully possessing marijuana on 29 July 1993
* wrongfully possessing marijuana on 26 August 1993
* wrongfully distributing marijuana on 26 August 1993 

The sentence imposed was the forfeiture of $450 pay for 1 month.

11.  On 18 November 1993, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for misconduct - patterns of misconduct.  Specifically, he cited the FSM's positive urinalysis on 30 June 1993, his possession of a controlled substance on 29 July 1993, and his distribution of a controlled substance on 26 August 1993.  He stated he was recommending he receive an under honorable conditions characterization of service.  He was further notified that the separation authority was not bound by the recommendation and may direct he be discharged with an under other than honorable conditions characterization of service. 

12.  On 18 November 1993, the FSM acknowledge receipt of the notification and declined to consult with legal counsel.  

13.  On 15 December 1993, his intermediate commander recommended approval of the discharge action with an under honorable conditions characterization of service.

14.  On 20 January 1994, the FSM consulted with legal counsel and he was advised of the basis for the discharge action initiated against him for a pattern of misconduct, the type of discharge he could receive, of the procedures and rights available to him, and the effect of waiving his rights.  He acknowledged he understood if he were issued a general, under honorable conditions discharge he could expect to encounter prejudice in civilian life.  He further acknowledged he understood if he were issued an under other than honorable conditions discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.  He waived consideration of his case by a board of officers contingent upon his receiving a characterization of service no less favorable than under honorable conditions.  With his request for a conditional waiver, the FSM submitted on his own behalf his statement dated 27 August 1993.

15.  On 9 February 1994, the separation authority disapproved his request for a conditional waiver and ordered a board of officers to convene to determine whether he should be eliminated from the service for misconduct.

16.  On 17 March 1994, the board convened and, after reviewing the FSM's records, hearing testimony from witnesses, his chain of command, the FSM, and arguments from his legal counsel, the board recommended the FSM be discharged under the provisions of Army Regulation 635-200, paragraph
14-12b, for misconduct - patterns of misconduct with an under other than honorable characterization of service.

17.  On 29 April 1994, the separation authority approved the findings and recommendations of the board of officers and approved the discharge of the FSM with an under other than honorable conditions discharge.  On 12 May 1994, he was discharged accordingly.

18.  The DD Form 214 he was issued shows the FSM was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct with an under other than honorable conditions characterization of service.  He completed 3 years, 1 month, and 17 days of net active service.

19.  Item 14 of his DD Form 214 does not show the Airborne Course.

20.  There is no indication the FSM applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

21.  The FSM died on 28 November 2010.

22.  The applicant provides a certificate wherein it shows the FMS successfully completed the Airborne Course on 12 February 1993 at Fort Benning, GA.  In an email, dated 7 November 2013, a representative from Academic Records, Fort Benning, GA, verified the FSM attended and successfully completed the Airborne Course from 22 January to 12 February 1993 (3 weeks).

23.  The applicant provides four statements of support, one undated and three dated between 13 and 19 December 2011, wherein they all stated the FSM was a good man, always helpful and courteous, proud of his career in construction, and a positive person who unfortunately succumbed to the disease of substance abuse.  They all supported the request for an upgrade of his discharge.

24.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, and abuse of illegal drugs.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  

25.  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.

26.  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.

27.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparation of the DD Form 214.  The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  It states for item 14, list formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214; include title, length in weeks, and year completed.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the FSM attended and successfully completed the 3-week Airborne Course in February 1993.  Therefore, his DD Form 214 should be corrected accordingly. 

2.  With respect to the upgrading of the FSM's discharge, the evidence of record confirms the FSM demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received for using marijuana and the summary court-martial he received for two specifications of possessing marijuana and for distributing marijuana.  Accordingly, his immediate commander initiated separation action against him.

3.  A board of officers was convened and 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.

4.  Although it appears the FSM may have been dissatisfied with his assignment to Fort Benning, GA, he had also stated his misconduct was due to several personal problems he experienced after his assignment to Fort Benning.  Regardless, it doesn’t mitigate the fact that he chose to use and sell illegal drugs while he was serving on active duty.

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

6.  Based on this record of misconduct, the FSM's 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 

___x____  ____x___  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the FSM's DD Form 214 to add in item 14 the entry "AIRBORNE COURSE, 3 WEEKS, 1993."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends
denial of so much of the application that pertains to upgrading the FSM's discharge to an honorable or general, under honorable conditions discharge.




      _______ _   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)                                         AR20130005319





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ABCMR Record of Proceedings (cont)                                         AR20130005319



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