BOARD DATE:	  16 December 2014

		DOCKET NUMBER:  AR20140008593


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 that his under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

2.  The applicant states, in effect, that he fought for this country like every other Soldier.  He loves his country.  He contends that he was harassed and put out of the service too close to the expiration of his term of service (ETS).

3.  The applicant provides no additional documentation.

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 24 September 1987, the applicant enlisted in the Regular Army.  He completed his initial training as a food service specialist.
3.  The applicant completed a 12-month tour of duty in the Republic of Korea in February 1989, after which he was reassigned to Fort Ord, California.

4.  On 1 May 1990, the applicant was advanced to specialist, pay grade E-4.

5.  The applicant’s records contain the following three nonjudicial punishments (NJPs):

	a.  27 June 1990: for unlawful assault and being drunk and disorderly;

	b.  14 November 1990: for wrongful use of cocaine; and

	c.  8 February 1991: for wrongful use of cocaine.

6.  At a mental status evaluation the applicant's behavior was found to be passive.  He was fully alert and oriented and displayed an unremarkable mood but was mildly depressed.  His thinking was clear, his thought content normal and his memory was good.  There was no significant mental illness.  The applicant was mentally responsible.

7.  On 11 March 1991, the applicant’s commander notified him of his intent to recommend him for separation under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 14, for misconduct due to the commission of a serious offense by the wrongful use of cocaine on two separate occasions.

8.  On 11 March 1991, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected not to make a statement in his own behalf and requested consulting counsel and representation only if his waiver of a separation board was denied.

9.  On 11 March 1991, the applicant’s commander recommended separation from the service as discussed above.

10.  On 26 June 1991, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a UOTHC discharge.

11.  Accordingly, on 11 July 1991, the applicant was discharged UOTHC.  He completed 3 years, 9 months and 18 days of creditable active service.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include a pattern of misconduct and commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  The misconduct is considered a commission of a serious military or civil offense when the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice (UCMJ).
   
   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.

14.  Under the UCMJ, the maximum punishment allowed for violation of Article 112a for wrongful use of cocaine is a punitive discharge and 5 years confinement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded to honorable because he was harassed and put out of the service too close to his ETS.

2.  The record shows the applicant received NJP twice for using cocaine and once for assault and being drunk and disorderly.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The applicant’s implied argument that he should have been allowed to serve until he reached his ETS and then receive an honorable characterization of service is without merit.  Based on the seriousness of his misconduct, the commander could have requested he be tried by court-martial which, if he had been convicted, could have resulted in a punitive discharge and confinement for 5 years.

5.  The applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to any upgrade of his discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110020309



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ABCMR Record of Proceedings (cont)                                         AR20140008593



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