BOARD DATE:	  6 May 2014

		DOCKET NUMBER:  AR20130015782 


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, in effect, an upgrade of his general discharge.

2.  The applicant states he would like his discharge changed or the word "General" deleted from his DD Form 214 (Certificate of Release or Discharge from Active Duty).  It might affect or raise a red flag to his employer and slow down the receipt of medical benefits from the Department of Veterans Affairs (VA).  He has never used the VA or benefits available to veterans until recently now that he is attending school.

3.  The applicant provides a copy of his DD Form 214.

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-1, on 7 July 1994. He held military occupational specialty 94B (food service specialist).  He was advanced to pay grade E-3 on 7 July 1995.

3.  His record contains a DA Form 4126 (Bar to Reenlistment), dated 14 August 1996, which shows he was barred from reenlistment.  The form stated he was punished under Article 15, Uniform Code of Military Justice (UCMJ) (his record is void of a copy of this Article 15), on 28 March 1996 for the wrongful use of marijuana and he was reduced to pay grade E-2.

4.  On 20 August 1996, the bar to his reenlistment was approved.

5.  On 8 October 1996, he accepted nonjudicial punishment under Article 15, UCMJ, for the wrongful use of marijuana between 19 August 1996 and 17 September 1996, and he was reduced to pay grade E-1.

6.  A Report of Mental Status Evaluation, dated 25 October 1996, shows he was found to have the mental capacity to understand and participate in the chapter 14 proceedings and was mentally responsible.  

7.  On 9 December 1996, the applicant’s company commander initiated action against the applicant to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 14, for commission of a serious offense.  He stated the reasons for the proposed action were the applicant wrongfully using marijuana on or between 21 January 1996 and 20 February 1996 and again on or between 19 August 1996 and 17 September 1996.  He advised the applicant of his rights and that he could receive a general discharge.

8.  On 9 December 1996, the applicant acknowledged receipt of the proposed separation, waived his right to counsel, and elected not to submit a statement in his own behalf.    

9.  On 10 December 1996, the applicant's battalion commander recommended approval of the applicant's discharge.

10.  On 11 December 1996, the separation authority approved the applicant’s discharge and directed the issuance of a general discharge.

11.  He was discharged in pay grade E-1 on 9 January 1997, under the provisions of Army Regulation 635-200, paragraph 14-12c, for Misconduct.  He was credited with completion of 2 years, 6 months, and 3 days of net active service.  Item 24 (Character of Service) of his DD Form 214 contains the entry, "Under Honorable Conditions (General).

12.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

13.  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 – Soldiers would be separation for the commission of a serious offense such as the abuse of illegal drugs.  It provided that individuals in pay grade below E-5 would be processed after a first drug offense and would 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 records.

   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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was twice punished under Article 15 for the wrongful use of marijuana.  His company commander initiated a bar to his reenlistment and subsequent action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.  The separation authority approved his discharge and directed the issuance of a general discharge.  He was discharged accordingly on 9 January 1997.

2.  It appears that based on his overall record it was directed he receive a general discharge, as the characterization of service for this type of discharge was normally under other than honorable conditions.

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his discharge or deletion of the word "General" from Item 24 of his DD Form 214.

5.  His desire to have his general discharge upgraded so that he can qualify for medical and/or other benefits administered by the VA is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits administered by the VA.

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)                                         AR20130015782





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ABCMR Record of Proceedings (cont)                                         AR20130015782



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