IN THE CASE OF:  	  

		BOARD DATE:  30 June 2015	  

		DOCKET NUMBER:  AR20140019713 


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, in effect, an upgrade of his under honorable conditions (general) discharge.  He also requests a copy of his DD Form 214 (Certificate of Release or Discharge from active Duty) and his medical records.  

2.  The applicant states, in effect, he is in need of benefits and assistance.  He had a problem that occurred during airborne school and assignment to a permanent party. 

3.  The applicant provides a statement from a substance abuse counselor. 

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's records show he enlisted in the Regular Army on 1 February 1989.  He was trained in and held military occupational specialty 12B (Combat Engineer).  He also completed airborne training. 

3.  He was assigned to the 37th Engineer Battalion at Fort Bragg, NC.  He was awarded or authorized the Army Service Ribbon, Parachute Badge, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Expert Marksmanship Qualification Badge with Grenade Bar.

4.  On 25 August 1989, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing cocaine.  

5.  On 7 September 1989, he again accepted NJP under the provisions of Article 15 of the UCMJ for: 

* failing to be at the time prescribed at his appointed place of duty 
* breaking restriction on four separate occasions 

6.  On 15 August 1989, he underwent a mental status evaluation.  He was found mentally responsible and met retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  He was cleared for administrative actions deemed appropriate by his chain of command. 

7.  On 7 September 1989, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) for misconduct – commission of a serious offense.  The specific reason cited was the applicant's possession of cocaine.  

8.  The applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He waived consideration of his case by an administrative separation board (he was ineligible for one), waived his right to appear before such board, and elected not to submit statements in his own behalf.  He acknowledged he understood:

* he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws

9.  Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200 due to misconduct – commission of a serious offense.  The immediate commander recommended a general discharge.  The intermediate commander recommended approval of the discharge, also with a general discharge.

10.  On 14 September 1989, consistent with the chain of command's recommendations and following a legal review for legal sufficiency, the separation authority approved the administrative discharge and ordered the applicant discharged under the provisions of paragraph 14-12c of Army Regulation 635-200 by reason of misconduct (commission of a serious offense) and directed issuance of an under honorable conditions discharge.  The applicant was discharged on 25 September 1989.

11.  The DD Form 214 he was issued at the time is not available for review with this case.  However, it would have shown he was discharged by reason of misconduct under the provisions of chapter 14, Army Regulation 635-200, with his service characterized as under honorable conditions (general).  This form would have also shown the applicant's 7 months and 25 days of active service.

12.  On 22 February 1990, he was issued a DD Form 215 (Correction to DD Form 214) that corrected the separation code from what his DD Form 214 listed to the code of "JKQ." 

13.  On 26 March 2007, he was issued a Certification of Military Service documenting his active service from 1 February 1989 to 25 September 1989 with a general, under honorable conditions discharge. 

14.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.  

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	a.  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. 

	b.  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.

16.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  Paragraph 2-7c states not to issue a DD Form 214 to replace record copies or DD Forms 214 lost by Soldiers.  If no DD Form 214 is available, issue a statement of service or transcript of military record.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the character of service: 

	a.  The evidence of record shows the applicant committed a serious offense in that he wrongfully possessed illegal drugs (cocaine).  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was accordingly discharged under the provisions of Army Regulation 635-200, chapter 14, due to his misconduct.

	b.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  His discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, he should not receive an upgrade of his discharge to a fully honorable discharge. 
2.  The applicant enlisted in the Regular Army on 1 February 1989 and he was discharged on 25 September 1989.  He would have been issued a DD Form 214 on the date of his discharge.  The regulation states if no DD Form 214 is available, issue a statement of service or transcript of military record.  The applicant was issued a Certification of Military Service that captured his active duty service.  

3.  The ABCMR is not a records repository and the Board does not maintain copies of medical records.  The applicant is advised to contact the National Personnel Records Center, 1 Archives Drive, St. Louis, MO 63138.  Their website provides further information: http://www.archives.gov/veterans/military-service-records.  

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)                                         AR20140019713





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ABCMR Record of Proceedings (cont)                                         AR20140019713



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