BOARD DATE: 19 November 2015 DOCKET NUMBER: AR20150004169 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 under other than honorable conditions (UOTHC) discharge to a general discharge. 2. The applicant states he feels that after his father's death while he was honorably serving in Saudi Arabia on a volunteer mission the Army could have done more in the way of counseling and/or associated services. The Army only purchased a plane ticket and sent him back to the United States. As a result he began using drugs which led to a dirty urinalysis which triggered the Army to discharge him. He feels he should have received a second chance and rehabilitation due to his service record, i.e., completion of the Combat Life Saver Course, a battalion coin for saving a Soldier's life while completing field exercises, and a 298 score on the physical training test. This drug habit eventually led to him being involved in a civilian felony case which resulted in the Army changing his discharge to UOTHC. He believes his discharge should be upgraded because he was never afforded the opportunity to rehabilitate and he received no assistance after his father's death. The charge was not a Class-A Felony, basically it was a misdemeanor. 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 the cases 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. 2. The applicant enlisted in the Regular Army on 3 April 1992 and he held military occupational specialty 52C (utility equipment repairman). He was advanced to pay grade E-3 on 3 April 1993. 3. On 10 November 1993, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongfully using cocaine between 8 August and 8 September 1993. His punishment included a reduction to pay grade E-1, a forfeiture of $407.00 pay for 2 months, and 45 days of restriction and extra duty. He elected not to appeal the punishment. He was reduced to pay grade E-1 on the same day. 4. A Complaint Report and a Supplement Report, dated 25 February 1994, show he was arrested by civilian authorities for aggravated robbery of a 7/11 store. 5. On 26 February 1994, his duty status was changed to absent without leave (AWOL) due to civilian confinement. 6. On 15 April 1994, the applicant’s company commander initiated action against the applicant to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c(2), for commission of a serious offense. He stated the reason for the proposed action was the applicant's robbery, by means of force, of a 7/11 store and the wrongful use of cocaine. He recommended the applicant receive an UOTHC discharge and advised the applicant of his rights. 7. On 15 April 1994, the applicant acknowledged receipt of the proposed separation. He also acknowledged he could receive an UOTHC discharge and the results of the issuance of such a discharge. He waived his rights. He indicated he would submit a statement on his own behalf; however, there is no evidence that he did so. 8. On 21 April 1994, the Deputy Staff Judge Advocate found the applicant's discharge packet was legally sufficient and the packet was forwarded to the separation authority for final action. 9. On 26 April 1994, the applicant's company commander stated he had visited the applicant at the county jail for the purpose of counseling and presenting a Chapter 14 discharge packet. He advised the applicant that he had the right to talk to the Trial Defense Service, but the applicant elected not to talk to them. 10. On 3 May 1994, the separation authority approved the waiver for further rehabilitative efforts and for the applicant’s discharge. The separation authority directed the issuance of an UOTHC discharge and the reason for separation be stated on the DD Form 214 (Certificate of Release or Discharge from Active Duty) as "Misconduct: Aggravated Robbery, Illegal Use of Cocaine." 11. He was discharged accordingly in pay grade E-1 on 20 May 1994. He was credited with completing 1 year, 10 months, and 24 days of net active service and time lost from 26 February through 20 May 1994. His service was characterized as UOTHC. 12. There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge. 13. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Paragraph 14-12c – Soldiers would be separated for the commission of a serious offense such as the abuse of illegal drugs. It provided that individuals in pay grade below E-5 would be processed after a first drug offense and would be processed for separation after a second offense. The issuance of a discharge UOTHC was normally considered appropriate. The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall records. b. Paragraph 14-12c(2) (Abuse of Illegal Drugs) – abuse of illegal drugs was serious misconduct. The immediate and intermediate commanders would recommend separation or retention. Recommendations would be made as to characterization of service. c. Paragraph 3-7a – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. d. Paragraph 3-7b – a general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION AND CONCLUSIONS: 1. The applicant accepted punishment under Article 15 for wrongfully using cocaine. He was subsequently arrested and confined by civilian authorities for aggravated robbery. Action was initiated to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, for the two offenses. He waived his rights and acknowledged he could receive an UOTHC discharge. It appears that he did not submit a statement in his own behalf. The separation authority approved the waiver for further rehabilitative efforts and his discharge. 2. The evidence shows his administrative discharge was accomplished in compliance with applicable law and regulation in effect at the time with no indication of procedural error which would have jeopardized his rights. 3. Based on the evidence in his record, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, his discharge should not be upgraded to a general discharge. 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) AR20150004169 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004169 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1