IN THE CASE OF:
BOARD DATE: 29 January 2015
DOCKET NUMBER: AR20140007004
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 an upgrade of his discharge under other than honorable conditions to an honorable or a general discharge.
2. The applicant states:
* He made a mistake when he was young and he doesn't believe he should have to pay for it for the rest of his life
* He would like to be able to get his medical benefits
* It has been 28 years since he was discharged and he has not been able find a decent job since his discharge
* He is asking for a second chance in life so he can provide a better life for his wife, children, and himself
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 30 April 1985 at age 20. He completed training as a petroleum supply specialist.
3. On 21 July 1987, the applicant accepted nonjudicial punishment (NJP) for wrongfully using cocaine.
4. The facts and circumstances pertaining to the applicant's discharge are not available. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 8 January 1988 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct abuse of illegal drugs. His DD Form 214 also shows that he was discharged under other than honorable conditions. He completed 2 years, 8 months, and 9 days of net active service this period.
5. The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 14 of the regulation 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 is normally considered appropriate for a Soldier discharged under this chapter.
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 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted. However, he has not shown error or injustice in the type of discharge he received.
2. The evidence of record shows he accepted NJP for wrongfully using cocaine. A discharge under other than honorable conditions is normally considered appropriate.
3. The fact that he was 20 years old and that it has been 28 years since his discharge are not sufficiently mitigating to warrant the requested relief. 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. Further, the type of discharge he received appears to accurately reflect his service.
4. In view of the foregoing, his request should be denied.
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) AR20140007004
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ABCMR Record of Proceedings (cont) AR20140007004
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