BOARD DATE: 20 January 2015
DOCKET NUMBER: AR20140010347
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 general discharge be upgraded to a fully honorable discharge.
2. The applicant states that he has a serious form of cancer and would like to have his discharge upgraded before he dies.
3. The applicant provides a copy of his General Discharge Certificate.
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 25 February 1986 for a period of 3 years and training as an infantryman. He completed his one-station unit training at Fort Benning, Georgia and was transferred to Fort Campbell, Kentucky for his first and only duty assignment.
3. On 6 October 1987, nonjudicial punishment was imposed against the applicant by his battalion commander for the wrongful use of marijuana.
4. On 26 August 1988, nonjudicial punishment was again imposed against the applicant by his battalion commander for the wrongful use of marijuana.
5. On 21 September 1988, the applicants commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14 for misconduct due to abuse of illegal drugs.
6. After consulting with defense counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.
7. On 28 September 1988, the appropriate authority approved the recommendation for discharge and directed that he be furnished with a General Discharge Certificate.
8. Accordingly, he was discharged under honorable conditions on 3 October 1988 under the provisions of Army Regulation 635-200, paragraph 14-12c(2)
due to misconduct abuse of illegal drugs. He had served 2 years, 7 months, and 9 days of active service.
9. On 17 November 1994, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. After reviewing the facts and circumstances of his case, the ADRB determined that his discharge was proper and voted to deny his request for an upgrade of his discharge. However, the ADRB determined that the narrative reason for his discharge was inequitable and voted unanimously to change the reason for his discharge to simply Misconduct. The actions were approved on 18 December 1996. Accordingly, he was issued a new DD Form 214.
10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and procedures for separating personnel for misconduct. Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
11. Paragraph 3-7a of Army Regulation 635-200 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
2. Notwithstanding the actions by the ADRB, the characterization and the narrative reason for separation were appropriate.
3. The applicants contentions have been noted; however, they are not sufficiently mitigating to warrant an upgrade of his discharge to fully honorable given the serious nature of his offenses and his otherwise undistinguished record of service.
4. Therefore, in the absence of evidence showing an error or injustice occurred in his case, there appears to be no basis to grant his 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.
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