IN THE CASE OF

		BOARD DATE:	    22 July 2014

		DOCKET NUMBER:  AR20130020274 


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 a general discharge. 

2.  The applicant states:

* he has paid his debt after all these years
* he realizes that he made a mistake while serving
* he desires to use Department of Veterans Affairs (VA) healthcare due to some current medical issues.
 
3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 1 August 1984 for a period of 3 years.  He completed his training and was awarded military occupational specialty 11B (infantryman).

3.  In December 1984, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for possessing marijuana.

4.  In January 1985, a bar to reenlistment was imposed against him.

5.  On 6 February 1985, he was convicted by a summary court-martial of being absent without leave from 22 December 1984 to 2 January 1985 and failure to repair.  He was sentenced to confinement for 30 days.  On 13 February 1985, the convening authority approved the sentence.

6.  On 12 March 1985, he was notified of his pending separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense).  The unit commander cited:

* the applicant's constant failures to repair
* his level of motivation, morale and attitude were always below standard
* his job performance was unacceptable
* he had two positive urinalyses

7.  On 12 March 1985, he consulted with counsel and he was advised of the impact of the discharge action.  He also acknowledged that he might encounter substantial prejudice in civilian life if he were issued an under other than honorable conditions discharge.  He elected not to submit a statement in his own behalf.

8.  On 23 April 1985, the separation authority approved the recommendation for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 26 April 1985, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (drug abuse).  He completed a total of 7 months and 22 days of creditable active service with 34 days of time lost.

10.  There is no evidence in the available record that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  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 3-7b 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 contends he desires to use VA healthcare benefits.  However, a discharge is not changed for the purpose of obtaining VA benefits.

2.  His brief record of service included a bar to reenlistment, one NJP, one summary court-martial conviction, and 34 days of time lost.  As a result, his record of service was not satisfactory.

3.  His 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 in which he could have voiced his concerns; however, he elected not to do so.

4.  Since a discharge under other than honorable conditions is normally appropriate for the authority and reason for his separation, the type of discharge directed and the reasons were appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant a general 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)                                         AR20130020274





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ABCMR Record of Proceedings (cont)                                         AR20130020274



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