IN THE CASE OF:    

		BOARD DATE:  11 December 2014	  

		DOCKET NUMBER:  AR20140007657 


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.

2.  He states:

	a.  He was young, away from home for the first time, and hoping to get some direction and discipline in his life.  He does not blame his mistakes on anyone but himself, and he is aware that he had every opportunity to succeed.  He didn't understand that alcoholism and drug addiction is a progressive disease that would turn into a necessity for him or that things were going to get worse.  After leaving the military where he learned to engage in these things through peer pressure, his addictions lasted a decade.  He drank over his failures, especially failing to complete his military service.

	b.  In 1993, he surrendered to his addiction, and he was placed in rehabilitation for 56 days where he learned a lot about addiction and mental health.  His life began to flourish, and with 2 years sober, he began college and found some peace with himself and the military through Alcoholics Anonymous (AA) meetings.  Eight years later, after receiving a degree and giving back to the military through AA, he worked in a senior living facility as the nutritional director. He built a house and helped his daughter while she went to college, and he continued his sobriety.  In 2010 he was hospitalized with a major illness that left him partially blind with neuropathy and Behcet's disease.  He was released from his job and placed on unemployment.  He lost his home and his belongings, and by February 2013 he was broke and homeless.  He has never needed or pursued his military benefits until now, and he would be grateful to have his discharge changed to one that may offer some assistance.

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* documents related to a Social Security Administration (SSA) determination of his eligibility for Supplemental Security Income (SSI) payments
* documents related to a Department of Veterans Affairs (VA) decision regarding his eligibility for benefits
* various documents from his Official Military Personnel File (OMPF)

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.  On 30 November 1983, the applicant enlisted in the Regular Army at age 21.  After completing initial entry training, he was awarded military occupational specialty 19D (Cavalry Scout).

3.  On 18 October 1984, his battalion commander approved his company commander's recommendation that he be barred from reenlistment based on having tested positive for tetrahydrocannabinol (a metabolized component of marijuana). 

4.  On 24 October 1984, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana between 2 and 12 September 1984.

5.  On 30 November 1984, he was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) by direction of his commander.  Review of his record indicates he made satisfactory progress in the program through 29 May 1985.
6.  On 8 February 1985, he received NJP for failing to go at the time prescribed to his appointed place of duty on 4 February 1985.

7.  On 25 October 1985, he received NJP for failing to go at the time prescribed to his appointed placed of duty on 16 October 1985.

8.  Effective 3 December 1985, his duty status was changed from present for duty to absent without leave (AWOL).  Effective 6 January 1986, he was dropped from the rolls (DFR).  

9.  Effective 12 November 1988, his duty status was changed from DFR to present for duty.  

10.  A DD Form 458 (Charge Sheet), dated 12 November 1988, shows he was charged with being AWOL from 3 December 1985 to 12 November 1988.

11.  On 23 November 1988, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.

12.  After consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial  under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

	a.  He acknowledged that:

* he could request discharge for the good of the service because a charge had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge
* he was guilty of the charge against him or a lesser-included offense therein contained that also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation for he had no desire to perform further military service
* he understood he could be issued an under other than honorable conditions discharge 
* as a result of such a discharge, he would be deprived of many or all Army benefits and might be ineligible for many or all benefits administered by the VA
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge

	b.  He indicated he would not submit statements in his own behalf. 

13.  On 20 January 1989, the separation authority approved the applicant's request and directed he be given an under other than honorable conditions discharge.  On 9 February 1989, he was discharged in accordance with the separation authority's decision.  His DD Form 214 shows he completed 1 year, 2 months, and 22 days of net active service this period.

14.  He provides, in part:

	a.  correspondence from the VA, dated 10 January 2013, informing him of the determination that his military service was not honorable for VA purposes; and

	b.  documents related to a determination of his eligibility for SSI payments showing that, on 31 March 2014, he was notified of an Administrative Law Judge's decision that he is disabled under the applicable sections of the Social Security Act.

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

	a.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	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, 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 ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  He states he was young during his Army service.  He was 21 years of age when he enlisted.  There is no evidence that he was any less mature than Soldiers of the same age who successfully completed their military service.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant's records show he was charged with an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout the discharge process.

4.  There is no evidence indicating that drug and alcohol abuse contributed to his decision to go AWOL, and the available records indicate he was progressing in the ADAPCP.  Even if drug and alcohol abuse did contribute to his decision to go AWOL, it would not be a basis for upgrading his discharge.

5.  He received NJP on three occasions, and he was AWOL for nearly three years.  Due to this misconduct, his service was unsatisfactory.  There is no basis upon which to grant 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)                                         AR20140007657





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ABCMR Record of Proceedings (cont)                                         AR20140007657



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