IN THE CASE OF:	  

		BOARD DATE:	   6 August 2015 

		DOCKET NUMBER:  AR20150000666 


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 general discharge under honorable conditions to fully honorable.

2.  He states, that:

* 30 years ago he was young, felt invincible, was cocky, and thought that joining the military would get him away from certain elements
* during most of his enlistment he performed well until he got mixed up with some guys 
* since getting out of the military, he has been steadily working until he was diagnosed with kidney failure
* he uses a Department of Veterans Affairs hospital for medical treatment
* he was injured in the service and wishes to apply for benefits
* he is requesting that the Board review his record of service in the military, his work history, and his personal conduct over the past 30 years

3.  He 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 22 February 1984.

3.  The applicant's record contains seven DA Forms 4856 (General Counseling Form), dated from 1 July 1988 to 24 July 1989, which shows he was counseled on his monthly performance, refusal to carry out his extra duty assignments, failure to make formation, revocation of pass privilege's, and notification of chapter action.

4.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on 3 November 1988, for wrongful use of cocaine between 25 September and 5 October 1988.

5.  On 1 August 1989, the unit commander notified the applicant he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) chapter 14.  Specifically, the commander stated the basis for his action was the applicant's misconduct, commission of a serious offense, due to testing positive for cocaine twice within a 12 month period.  

6.  On 1 August 1989, the applicant elected not to consult with military counsel.  After being advised of the basis for the contemplated separation action by a senior noncommissioned officer in the U.S. Army Trial Defense Service, and the effect of the discharge and the rights available to him, he elected not to submit a statement in his behalf.  He acknowledged that he understood that he could encounter substantial prejudice in civilian life if a general discharge was issued to him.  He further acknowledged that he understood if he received a character of service which was less than honorable he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge.  However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  He also understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

7.  On 5 August 1989, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed the issuance of a General Discharge Certificate.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) 
shows he was discharged under honorable conditions on 14 August 1989 by reason of misconduct, abuse of illegal drugs under the provisions of Army Regulation 635-200, chapter 14.  He was credited with completing 5 years, 5 months, and 23 days of active service.

9.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  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 abuse of illegal drugs.  Action will be taken to separate a member for misconduct when it is 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

11.  Army Regulation 635-200, 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 evidence of record shows the applicant received a field grade Article 15 for offenses under the Uniform Code of Military Justice and was separated with a general, under honorable conditions discharge for misconduct – abuse of illegal drugs.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

2.  The evidence of record shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – abuse of illegal drugs.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Although an under other than honorable conditions discharge was normally warranted for separation for misconduct, it appears his chain of command considered his overall service record when he was recommended for and subsequently approved for separation with a general discharge.

4.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for other programs or benefits.  Every case is individually decided based upon its merits with supporting evidence when an applicant requests a discharge upgrade.

5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20150000666



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ABCMR Record of Proceedings (cont)                                         AR20150000666



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