BOARD DATE:	  16 April 2014

		DOCKET NUMBER:  AR20130013884 


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 an honorable discharge.

2.  The applicant states:

   a.  His commander never signed off on his original discharge.  The out-processing center at Fort Dix, NJ, had to determine it.  As a person and a Soldier he now realizes what it meant 20 years ago to defend his country and he would like a second chance.

   b.  In July 1990, he embarked on a career in the military that he had always dreamed of.  He completed basic and advanced individual training in military occupational specialty (MOS) 13B (cannon crewmember).  While serving in Germany, he befriended a Soldier from Chicago, IL.  One night, he, this friend, and another Soldier followed some girls back to their barracks and left the next morning.  On the way back to their barracks, the friend driving fell asleep and crashed the vehicle into oncoming traffic.  They were not wearing seatbelts and were ejected 15 feet from the truck.  He blames himself for his Chicago friend's death.  After he got out of the hospital, he drank more and started using drugs.

   c.  He began hanging around the wrong people and doing anything to take his mind off of the accident.  The left side of his face was stitched up and he looked like a freak.  After the accident nothing was the same about him and he went on a downward spiral.  When he got in trouble with drugs while in Germany, he shamed the Army, his family, and his good friend.  He would be lying to himself if he stated that the accident contributed 100 percent to his discharge, but without that accident his military life and his discharge would have been different.

   d.  He is trying to get his discharge upgraded for his family and what the military and America stands for: honor, pride, humility, and doing things the right way.

3.  The applicant provides copies of three post-service award certificates, pictures and records of his and his family, three character reference letters, and an Arrest Record Check Request.

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, in pay grade E-2, on 17 July 1990 and he held MOS 13B.  He was advanced to pay grade E-3 on 17 July 1991.  He served in Germany from 9 November 1990 to on or about 30 January 1992.

3.  His record is void of the facts and circumstances surrounding his discharge; however, his record contains the following:

   a.  DD Form 497 (Confinement Order), dated 10 January 1992, which shows he was placed in confinement as a result of a court-martial for the wrongful use, possession, and distribution of hashish.

   b.  A DD Form 367 (Prisoner's Release Order), dated 30 January 1992, which shows he released to Fort Dix for completion of confinement (special court-martial).

   c.  A DA Form 3822 (Report of Mental Status Evaluation), dated 27 March 1992, which was requested for his discharge for misconduct.  The form shows his behavior was found to be normal, he was fully alert and fully oriented, and his mood was unremarkable.  His thinking process was clear and his thought content was normal.  He was found to have the mental capacity to understand and participate in the proceedings and was mentally responsible.

   d.  A DD Form 214 which shows he was discharged in pay grade E-1 on 9 September 1992, under the provisions of Army Regulation 635-200 (Personnel Separations, Enlisted Separations), paragraph 14-12c, for Misconduct/Abuse of Illegal Drugs.  He completed 2 years, 1 month, and 23 days of net service with no time lost.  His service was characterized as under other than honorable conditions.  

4.  In June 1997, the Army Discharge Review Board denied his request for an upgrade of his discharge.

5.  He provided copies of the following:

* three award certificates referencing his post-service achievements
* pictures and records referencing the birth of his children, his marriage, and pictures of him and his family
* three character reference letters wherein the individuals attested to him being a hard worker and stable family man
* an Arrest Record Check Request, dated 18 February 2014, which shows he has no criminal record

6.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 14-12c(2) – Soldiers would be separated for the commission of a serious offense such as the abuse of illegal drugs.  It provided that individuals identified as first time drug abusers, grades E-5 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could 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 was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.  The separation reason in all separations authorized by that paragraph would be "misconduct-drug abuse or abuse of illegal drugs."

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.
   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the facts and circumstances surrounding his discharge; however, the evidence of record shows that during his period of service in Germany he was convicted by a special court-martial of the wrongful use, possession, and distribution of hashish.  He was sentenced, placed in confinement, and subsequently transferred to Fort Dix, NJ, for completion of confinement.  He was discharged on 9 September 1992, under the provisions of Army Regulation 635-200, paragraph 14-2c, for Misconduct/Abuse of Illegal Drugs.

2.  His contentions and the documents he submitted were carefully considered; however, he did not provide sufficient evidence or a convincing argument to show his discharge should be upgraded.  His military record contains no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or a fully honorable discharge.

3.  Without evidence to the contrary, it is presumed his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights and that he was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting him the 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)                                         AR20130013884





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ABCMR Record of Proceedings (cont)                                         AR20130013884



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