IN THE CASE OF:
BOARD DATE: 3 March 2015
DOCKET NUMBER: AR20140012922
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, under honorable conditions discharge be upgraded to an honorable discharge.
2. The applicant states he would like to use the GI Bill in order to attend college and become a marine technician.
3. The applicant provides no additional evidence.
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 12 February 1987.
3. He accepted nonjudicial punishment (NJP) on 26 September 1988 for wrongful use of cocaine and marijuana and on 9 January 1991 for wrongful possession and distribution of cocaine.
4. On 26 February 1991, the applicant's immediate commander informed him of his intent to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 14-12c, for commission of a serious offense, with a general discharge. The commander cited the applicant's field grade Article 15 for the possession and distribution of cocaine as the reason for the proposed separation action. He was also advised of his right to:
* consult with legal counsel
* submit statements in his own behalf
* waive his rights in writing
5. On 26 February 1991, he consulted with legal counsel and he was advised of the basis for the contemplated separation action for commission of a serious offense. He elected not to submit a statement in his own behalf. He acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him. He also acknowledged he understood that if he received a character of service of less than honorable, he may apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge; however, he realized that an act of consideration by either board did not imply his discharge would be upgraded.
6. On 27 February 1991, the appropriate separation authority approved the recommendation for separation under the provisions of Army Regulation
635-200, paragraph 14-12c, and directed the issuance of a General Discharge Certificate. On 14 March 1991, he was discharged accordingly.
7. There is no evidence that indicates he applied to the ADRB for an upgrade of his discharge.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense. The issuance of a discharge under other than honorable conditions was 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests his general discharge be upgraded to an honorable discharge in order to utilize the GI Bill; however, the ABCMR does not upgrade discharges for the sole purpose of enabling an individual to obtain veteran's benefits.
2. His record shows he accepted NJP for wrongful use of cocaine and marijuana and for wrongful possession and distribution of cocaine, which are clearly serious offenses.
3. The evidence confirms his separation processing for misconduct was accomplished in accordance with the applicable regulations. All requirements of law and regulation were met and his rights were fully protected throughout the separation process.
4. By violating the Army's policy not to possess or use illegal drugs, he compromised the special trust and confidence placed in him as a Soldier and he knowingly risked his military career. This misconduct clearly diminished the quality of his service below that meriting a fully honorable discharge.
5. The applicant has failed to provide evidence demonstrating that the command's actions and/or the characterization of his service were in error or unjust.
6. In view of the foregoing, there is no basis for granting the applicant's 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) AR20140012922
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20140012922
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2012 | 20120000197
On 14 March 2000, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct. On 7 February 2007, after careful review of his application, military records and all other available evidence, the ADRB determined he was properly and equitably discharged. c. A general discharge was a separation from the Army under honorable conditions.
ARMY | BCMR | CY2010 | 20100008135
The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. The circumstances under which he was discharged merited the character of the discharge at the time. He was advised of the factual reasons for the proposed separation action and that he could be discharged with a UOTHC discharge.
ARMY | BCMR | CY2010 | 20100013273
On 16 January 1992, the unit commander notified the applicant he was initiating action to separate her under the provisions of paragraph 14-12c, Army Regulation 635-200 (Personnel Separations), for misconduct. Although a discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter, the separation authority may issue an HD or GD if warranted by the member's overall record of service. The applicant contends that her military...
ARMY | DRB | CY2008 | AR20080016384
Applicant Name: ????? The applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in his own behalf. Board Action Directed President, Army Discharge Review Board Issue a new DD Form 214 Change Characterization to: Change Reason to: No Change Other: NA RE Code: Grade Restoration: No Yes Grade: None ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number...
ARMY | BCMR | CY2007 | 20070014202
On 31 December 1985, the United States Army Court of Military Review affirmed the findings and sentence. The applicant has provided no evidence to show that his discharge was unjust at the time of his offenses. It is noted that if the applicant was found guilty of the charged offenses today, and was convicted at a trial by court-martial, the maximum sentence that may be imposed for a single violation of Article 112a, would be a dishonorable discharge, forfeiture of all pay and allowances,...
ARMY | BCMR | CY2009 | 20090006060
The applicant requests, in two applications, that his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge. While the applicant states that he simply picked up a Soldier who had illegal drugs in his possession and he was not using drugs himself, the evidence of record shows the contrary. The applicant was given a board of officers to consider his case, and the board of officers found that he did abuse illegal drugs and recommended that he be discharged.
ARMY | BCMR | CY2009 | 20090006845
The applicant requests, in effect, that his general discharge (GD) under honorable conditions be upgraded to a fully honorable discharge (HD). The DD Form 214 he was issued at the time shows he was separated under the provisions of paragraph 14-12c, Army Regulation 635-200 (Personnel Separations Enlisted Separations), by reason of misconduct drug abuse. Although the authority and reason for the applicant's discharge authorized the imposition of an under other than honorable conditions...
ARMY | BCMR | CY2007 | 20070003516
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 August 2007 DOCKET NUMBER: AR20070003516 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. On 30 April 1991, the applicant's commander recommended that the applicant be separated under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, commission of a serious offense for...
ARMY | BCMR | CY2010 | 20100024899
On 3 December 1987 consistent with the immediate, intermediate, and senior commanders' recommendations, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed his service be characterized as under other than honorable conditions. The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct commission of a...
ARMY | BCMR | CY2008 | 20080010344
On 19 April 1991, the applicant's commander recommended separation under the provisions of Army Regulation 635-200 (Personnel Separation), chapter 14-12c, for Misconduct-abuse of illegal drugs. He understood that he was not entitled to have his case considered by an administrative separation board because he had less than six years of active or reserve service at the time of separation and being considered for a separation under other than honorable conditions. There is no evidence that...