BOARD DATE:	  11 February 2014

		DOCKET NUMBER:  AR20130010492 


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 his discharge under other than honorable conditions be upgraded to honorable.

2.  He states he received a health care package from the Department of Veterans Affairs (VA) and after consulting with that agency he was informed his status had been changed to honorable.

3.  He does not provide any additional 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 14 April 1993.

3.  His record shows that between 22 March and 2 August 1996 he received seven negative counseling statements.  The counseling statements were for the following infractions:

* wrongfully using a controlled substance (cocaine)
* failure to go at the time prescribed to his appointed place of duty on five separate occasions
* initiation of paragraph 13-2 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)

4.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on:

* 30 April 1996, for failing to go to his appointed place of duty on 2 April,
9 April, and 10 April 1996
* 15 May 1996, for wrongfully using a controlled substance between on or about 19 March to 22 March 1996 
* 15 October 1996, for wrongfully using a controlled substance between on or about 16 July to 16 August 1996

5.  On 16 October 1996, the unit commander notified the applicant he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200, paragraph 14-12b, patterns of misconduct.  Specifically, he cited the applicant's wrongful use of a controlled substance (cocaine) and his continued absence from his appointed place of duty.

6.  On 17 October 1996, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action and its effects and the rights available to him, he waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service of no less than under honorable conditions (General Discharge).  

   a.  He also elected to submit a statement in his behalf.  He acknowledged he understood that he could encounter substantial prejudice in civilian life if a general discharge was issued to him.  He further acknowledged he understood if he received a character of service which was less than honorable he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge.  However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  He also understood he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

   b.  In his statement, dated 17 October 1996, he asked the commander for reconsideration of his recommendation for an under other than honorable conditions discharge and that he be considered for a general discharge.  He explained that he was in a horrible situation and was broke.  He continued by expounding on his problem with his automobile and the effect that an under other than honorable conditions discharge would have on his VA benefits.

   c.  On 30 October 1996, the applicant consulted with counsel and waived consideration of his case by an administrative board.  He understood that his chain of command was recommending that he receive an under other than honorable conditions discharge.  

7.  On 22 November 1996, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, with an under other than honorable conditions discharge.

8.  On 27 November 1996, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of misconduct, with a characterization of service of under other than honorable conditions.  The applicant was credited with completing 3 years, 7 months, and 14 days of total active service.

9.  On 8 April 1997, he appealed to the ADRB for an upgrade of his discharge.  On 23 January 1998, after careful consideration of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  The board denied his request for a discharge upgrade.

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

   a.  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.  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.  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.

   c.  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 applicant argues, in effect, that his discharge should be upgraded to honorable because the VA upgraded his "status" to honorable.  There is no evidence and he has not provided any to show that his "status" was upgraded to honorable.  Further, even if the VA upgraded his "status" to honorable, this fact is not sufficient as a basis to upgrade his discharge. 

2.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.  

3.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20130010492



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130010492



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1