IN THE CASE OF:	  

		BOARD DATE:	  16 September 2014

		DOCKET NUMBER:  AR20140000915 


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 upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states he:

* needs his discharge upgraded in order to obtain medical benefits
* was in Desert Storm and has Gulf War Syndrome
* his mind is so messed up as a result of the War that it led to his marriage going bad and ending in divorce
* has one child who is attending college
* has been going through tough times and has struggled with depression since Desert Storm

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a self-authored statement.

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 13 September 1989.

3.  His record reveals a disciplinary history that includes a DA Form 4856 (General Counseling Form) documenting a counseling session on 13 November 1991, for failure to repair during a division ready force 1 exercise and substance abuse.

4.  On 21 November 1991, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for an incident that occurred on an unspecified  date.

5.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 28 January 1992.  The examining physician determined he was mentally responsible and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

6.  His record contains a memorandum and allied documents from the Fort Campbell Resident Agency, Third Region, U.S. Army Criminal Investigation Command (CID), Subject:  CID Report of Investigation - Final, dated 13 March 1992, that states he wrongfully used cocaine while assigned as a Soldier at Fort Campbell, KY.

7.  On 1 April 1992, he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for abuse of illegal drugs.

8.  On the same date, his company commander recommended his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, due to testing positive for cocaine use.  The commander also recommended waiver of the rehabilitative requirements.

9.  On 6 April 1992, he acknowledged receipt of the proposed separation action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant elected his rights to legal counsel and to submit a statement in his own behalf; however, there is no such statement in the available records for review.

10.  On 7 April 1992, the intermediate commander recommended approval of his under other than honorable conditions discharge.

11.  On 30 April 1992, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

12.  On 5 May 1992, he was discharged accordingly.  The DD Form 214 he was issued shows the authority and reason for his discharge under the provisions of Army Regulation 635-200, for misconduct-abuse of illegal drugs with an under other than honorable conditions discharge.  The DD Form 214 he was issued confirms he completed 2 years, 7 months, and 23 days of creditable active service with 20 days of time lost.

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

   a.  Chapter 14 provides for separation for various types of misconduct which include drug abuse and provides that individuals identified as drug abusers may be separated prior to their normal date of expiration of term of service.  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.

   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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

	c.  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 evidence of record shows the applicant was recommended for separation under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct.

2.  His record shows he had a positive urinalysis for cocaine, one Article 15 under the UCMJ, and 20 days time lost.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

3.  Based on his record of indiscipline, the quality of his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel to warrant an honorable discharge.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for benefits.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.  

6.  In view of the foregoing, there is no basis for granting the applicant an honorable or 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)                                         AR20140000915





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140000915



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1