IN THE CASE OF:
BOARD DATE: 2 January 2014
DOCKET NUMBER: AR20130006638
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.
2. The applicant states:
* he would like his discharge upgraded to receive benefits (it appears he means Department of Veterans Affairs (DVA) benefits) since he was active in a unit that deployed to Haiti
* he trained cadets at West Point
3. The applicant provides no additional documentary evidence.
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 30 July 1993 for a period of 4 years and 17 weeks. He completed his training and was awarded military occupational specialty 11B (infantryman).
3. In May 1995, nonjudicial punishment (NJP) was imposed against the applicant for using marijuana.
4. On 14 June 1995, he was notified of his pending separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (abuse of illegal drugs). The unit commander cited the applicant's NJP for using marijuana.
5. He consulted with counsel and was advised of the impact of the discharge action. He acknowledged that he might encounter substantial prejudice in civilian life if he were issued a general discharge and he elected not to submit a statement in his behalf.
6. On 27 June 1995, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.
7. On 7 July 1995, he was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense). He completed a total of 1 year, 11 months, and 8 days of creditable active service.
8. There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.
a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense. The regulation states that abuse of illegal drugs is serious misconduct. The issuance of a discharge under other than honorable conditions is normally considered appropriate.
b. 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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.
2. The type of discharge directed and the reasons were appropriate considering all the facts of the case.
3. His record of service included one NJP for using marijuana. As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.
4. In view of the foregoing, there is no basis for granting the applicant an honorable discharge.
5. The ABCMR does not grant requests for discharge upgrades solely for the purpose of qualifying an applicant for veterans' or medical benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. Granting veterans' benefits is not within the purview of the ABCMR. Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the DVA.
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) AR20130006638
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