IN THE CASE OF: BOARD DATE: 12 January 2016 DOCKET NUMBER: AR20150005642 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 that he received a general discharge (GD) vice an under other than honorable conditions (UOTHC) discharge. 2. The applicant states: * at the time of the incident he was not thinking right; he was young and away from home and was not used to being away * he has not been in any trouble for the past 15 years, nor has he used any illegal drugs * he is a disabled veteran who needs this upgrade in order to receive assistance from the Department of Veterans Affairs (VA) for his medical condition, hereditary spastic paraplegia 3. The applicant provides a letter from Athena Diagnostics dated 23 March 2015. 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 29 November 1989, the applicant enlisted in the Regular Army (RA). After initial training, he was awarded military occupational specialty (MOS) 71L (Administrative Specialist). 3. The applicant’s separation package is not available for review; however, on 21 May 1991, Headquarters, 21st Theater Army Area Command, issued a memorandum, subject: Bar from the U. S. Army Europe (USAREUR) Installations, stating that the applicant’s discreditable conduct resulted in his processing for a UOTHC discharge from the Army. 4. On 28 May 1991, the applicant was discharged from active duty UOTHC. His DD Form 214 shows he was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-12c for misconduct due to the abuse of illegal drugs. He completed 1 year and 6 months of net active duty service. 5. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. 6. The applicant provides a letter from Athena Diagnostics that shows that on 23 March 2015, he was tested for the motor neuron disease, hereditary spastic paraplegia. 7. The applicant provides a letter from Athena Diagnostics stating that he was tested for a motor neuron disorder; however, there are no medical records indicating he had this disorder while in service or that his disorder affected his ability to make rational decisions. 8. 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 included acts or patterns of misconduct. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge UOTHC was normally appropriate for a Soldier discharged under this chapter. b. Paragraph 3-7a states 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 (GD) 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 HD. DISCUSSION AND CONCLUSIONS: 1. The applicant's request that his UOTHC discharge be upgraded to a GD in order to receive care at the VA for a motor neuron disease. However, ABCMR does not upgrade discharges solely on the basis that doing so may make a veteran eligible to receive VA benefits. 2. His record is void of the complete facts and circumstances surrounding his discharge. However, his DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct involving the illegal use of drugs and he was given a UOTHC discharge. 3. In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights. 4. His revelations regarding his youth and post-service medical condition are noted. There is no evidence indicating that either should be considered mitigating with regard to the misconduct that led to his separation. 5. The reason for discharge and the characterization of service were both proper and equitable. Further, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel. 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) AR20140012761 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005642 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1