IN THE CASE OF:	  

		BOARD DATE:	  11 September 2014

		DOCKET NUMBER:  AR20140000345 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in:

* item 24 (Character of Service) – "HONORABLE"
* item 28 (Narrative Reason for Separation) – "FOR THE GOOD OF THE SERVICE" 

2.  The applicant states if this is corrected it should not read in lieu of court-martial.  He was discharged from the Army because of a drug use charge.  He now contends he tested positive for drug use due to prescribed pain-killer medication he was on related to his treatment for a gunshot wound incurred during the Gulf War.  He never fought the charges in 1992 but he never used drugs.  He is in need of medical care for the residuals of his gunshot wound and other medical conditions he had on active duty.

3.  The applicant provides no additional documentary 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.  On 30 July 1976, the applicant enlisted in the Regular Army.  He continued serving through reenlistments.  The highest rank he held was staff sergeant/pay grade E-6.

3.  On 21 May 1987, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for disobeying a lawful order.

4.  His discharge packet is not contained in his record.  However, his record contains a DD Form 214 that shows on 27 February 1992, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial.  His DD Form 214 shows he completed 15 years, 6 months, and 28 days of total creditable active military service.  It further shows his service was characterized as under other than honorable conditions (UOTHC) and the narrative reason was "FOR THE GOOD OF THE SERVICE – IN LIEU OF COURT-MARTIAL."

5.  His records do not show any significant acts of achievement or valor during his military service.

6.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a Soldier who committed an offense or offenses, the punishment for which included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred and must include the individual's admission of guilt.  Commanders would insure a Soldier would not be coerced into submitting a request for discharge for the good of the Service.  The Soldier's written request would include an acknowledgement that the Soldier understood if his or her request for discharge was accepted, the Soldier could be discharged under conditions other than honorable.  They would also acknowledge that they had been advised and understood the possible effects of a discharge UOTHC; that, as a result of the issuance of such a discharge, they would be deprived of many or all Army benefits; that they may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that they may be deprived of their rights and benefits as a veteran under both Federal and State laws.  They would further acknowledge they understood they may expect to encounter substantial prejudice in civilian life because of a discharge UOTHC.

	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.

	c.  Paragraph 3-7b states 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.

8.  Army Regulation 635-5-1 (Separation Program Designators) provides the narrative reason for separation to be entered on the DD Form 214.  The narrative reason for separation under the provisions of Army Regulation 635-200, chapter 10 at the time was "For the good of the service - in lieu of court-martial."

9.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  He asserts that he never used drugs and he was prescribed pain killer medication at the time, which he now contends caused him to test positive for drugs resulting in his discharge.  However, there is no available evidence to support his assertion.

2.  The available evidence does not support his request for an honorable discharge or a change to his narrative reason for separation.

3.  He was discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, the applicant would have voluntarily requested discharge in lieu of a trial by court-martial.

4.  At the time, a UOTHC discharge was normally considered appropriate for Soldiers separated for the good of the service.  While the Board does not have his discharge packet, the Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veteran's or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  The record supports the reason and authority for discharge shown on his DD Form 214.  Therefore, there is no basis to upgrade his discharge to an honorable or general discharge or to change the narrative reason for separation.

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)                                         AR20140000345



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ABCMR Record of Proceedings (cont)                                         AR20140000345



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