IN THE CASE OF: BOARD DATE: 30 August 2011 DOCKET NUMBER: AR20110003721 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 upgrade of his general discharge to an honorable discharge and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the highest rank he held. 2. He states he was told that after a period of time he could have his DD Form 214 updated to reflect his highest rank achieved. With regard to his discharge, he states he is now a different person in his community than when he was in the service. He has completed a post-traumatic stress disorder class and learned additional information on how he may become a more rounded individual in his community and life. 3. He provides no additional supporting 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. Following a period of service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 18 April 1990. 3. Item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record) shows the highest rank/grade he held was specialist/ (SPC)/E-4. Item 21 (Time Lost) shows he was absent without leave (AWOL) from 20 to 23 April 1991. 4. On 7 September 1993, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using cocaine on or about 20 July 1993. His punishment included a reduction to private (PV1)/E-1. 5. An undated memorandum shows the applicant's commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 12c by reason of commission of a serious offense (wrongful use of cocaine) with a general discharge. The applicant acknowledged receipt of the notification with his signature. 7. On 27 September 1993, the applicant confirmed he had been advised by counsel of the basis for the contemplated action to separate him and its effects, the rights available to him, and the effect of waiving those rights. He waived consideration of his case by an administrative separation board and personal appearance before such a board. He also elected not to submit statements in his own behalf. He indicated he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. 8. On 18 October 1993, the separation authority approved his discharge with a General Discharge Certificate. On 28 October 1993, he was discharged accordingly. The DD Form 214 issued at the time shows his rank/grade as PV1/E-1. 9. There is no evidence that shows the applicant was advanced beyond PV1/E-1 after his reduction and prior to his discharge. 10. 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. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. 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. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. b. Paragraph 3-7a provides that an HD 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. 12. Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. It states for item a (Grade, Rate, or Rank) and b (Pay Grade), enter the active duty grade of rank and pay grade at time of separation. DISCUSSION AND CONCLUSIONS: 1. The evidence of record does not support the applicant's request for correction of his DD Form 214 to show the highest rank he held or upgrade of his discharge. 2. The record shows the applicant held the rank/grade of PV1/E-1 at the time of his discharge. The Army does not have, nor has it ever had, a policy authorizing restoration of the highest rank/grade held by an individual who was reduced and discharged for misconduct. 3. The available evidence shows he committed a serious offense and he was properly recommended for separation as a result. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 4. His record shows he was AWOL for 4 days and he received NJP for wrongful use of cocaine. Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an honorable discharge. 5. In view of the foregoing, there is no 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) AR20110003721 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110003721 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1