IN THE CASE OF:	  

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140018187 


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 his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he wants to receive proper medical treatment for a surgical procedure performed at Fort Dix, NJ in August 1990 while in an active duty status.  He states he is not the same person he was in 1991.  He has been married for 15 years, has a 25 year old daughter who is pregnant, and a 5 year old son.  He has been employed and would like to continue moving forward in a positive direction with a discharge upgrade.  

3.  The applicant provides no additional evidence in support of his application.

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 8 June 1989, he enlisted in the Regular Army for 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).  On 26 September 1989, he was assigned to B Battery, 1st Battalion, 7th Field Artillery at Fort Drum, NY.

3.  On 5 June 1990, he accepted nonjudicial punishment (NJP) for:

* unlawfully striking a private in the facial area with his fists
* wrongfully and unlawfully making under lawful oath to an investigator a false statement in substance on 27 February 1990
* wrongfully and unlawfully making under lawful oath to an investigator a false statement in substance on 23 March 1990

4.  On 24 April 1991, he was tried before a special court-martial.  

	a.  He pled not guilty and was found guilty of assaulting a military policeman on or about 12 January 1991.

	b.  He pled guilty and was found guilty of:

* failing to obey a lawful general regulation by drinking alcoholic 	beverages while under the legal age of 21
* being drunk and disorderly which conduct was prejudicial to the good 	order and discipline in the Armed Forces

5.  On 29 April 1991, he received a mental status evaluation.  The examiner found he met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  He was psychiatrically cleared for any administrative action deemed necessary by his command.

6.  On 13 May 1991, he accepted NJP for failing to go at the time prescribed to his appointed place of duty.

7.  On 16 May 1991, he received a second mental status evaluation.  The examiner found he met the physical retention standards prescribed in Army Regulation 40-501.  The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  He was diagnosed with occupational problems and alcohol abuse by history.  He was psychiatrically cleared for any administrative action deemed necessary by his command.

8.  On 29 May 1991, his unit commander requested an Article 15 be prepared for the applicant's wrongful use of cocaine on 18 April 1991.  There is no record of the final disposition of this offense.

9.  A copy of his unit commander's notification letter that action was being initiated to separate him is not available for review by the Board.  However, on 3 June 1991 the applicant acknowledged receipt of a notification of initiation of administrative separation actions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14.  This notification by the applicant's commander would have notified him that action was being initiated to separate him. The commander would have advised the applicant of his right to:

* consult with counsel
* obtain copies of documents that would be sent to the separation authority supporting the proposed separation action
* request a hearing before an administrative separation board if he had more than 6 years service
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge

10.  On 3 June 1991, the applicant submitted a statement acknowledging he had been advised by his consulting counsel of the basis for the contemplated separation action against him.  He had been afforded the opportunity to consult with appointed counsel, or military counsel of his own choice and he was not submitting statements in his own behalf.  He requested consulting counsel.  He understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

11.  On 3 June 1991, his commander recommended his elimination from the service before the expiration of his term of service and that he receive a general discharge under honorable conditions.  The reasons for the recommended discharge were the applicant's:

* wrongful use of cocaine
* failure to obey regulations
* 
assault of a military policeman
* Incident of being drunk and disorderly

12.  On 11 June 1991, the appropriate authority approved the discharge, directed issuance of a General Discharge Certificate, and directed that his service be characterized as under honorable conditions.

13.  On 21 June 1991, he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - abuse of illegal drugs.  He completed 2 years and 14 days of active service that was characterized as under honorable conditions.

14.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

15.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.

	 a.  An honorable discharge was a separation with honor and entitled 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.

	 b.  Chapter 14 stated that abuse of illegal drugs was serious misconduct.  Separation action normally was based upon commission of a serious offense.  
Paragraph 14-12c(2) stated 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

2.  His entire period of service was clearly considered in that he was issued a general discharge under honorable conditions where a discharge under other than honorable conditions was normally considered appropriate for abuse of illegal drugs.

3.  Based on his acceptance of NJP on two occasions, his wrongful use of cocaine, and conviction by a special court-martial, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is insufficient evidence warranting an honorable discharge.

4.  The Department of Veterans Affairs provides medical treatment for injuries incurred or aggravated by active military service.  Therefore, the applicant is advised to contact that agency concerning medical treatment.

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)                                         AR20140018187



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ABCMR Record of Proceedings (cont)                                         AR20140018187



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