IN THE CASE OF: BOARD DATE: 28 January 2016 DOCKET NUMBER: AR20150007122 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 that his under other than honorable conditions (UOTHC) discharge be upgraded to honorable. 2. The applicant states his discharge should be upgraded based on his prior service and good conduct. He contends that there was never any evidence of drug use or dereliction of duty. He continued to Soldier even though he was under a lot of stress and suffering from depression. 3. The applicant provides copies of: * A letter from the Army Review Boards Agency (ARBA) dated 7 July 1997 * A letter from the Department of Veterans Affairs (VA), dated 30 January 2003 * A letter from the VA, 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 15 November 1983, the applicant enlisted in the U.S. Army Reserve. He enlisted in the Regular Army on 24 January 1984. He completed his initial training as a combat engineer. 3. The applicant’s medical records are not available for review. A Standard Form 88 (Report of Medical Examination) dated 19 February 1987, as filed in his personnel records, reports that the applicant’s state of health was acceptable for retention in the military. He was diagnosed with a mild foot problem that did not require a physical profile limitation. 4. Records show the applicant was advanced through the ranks to sergeant, pay grade E-5, with a date of rank of 5 April 1987. 5. The applicant accepted the following nonjudicial punishment (NJP): a. 23 July 1987: he twice failed to go to his appointed place of duty at the prescribed time; and made and uttered numerous personal checks without having sufficient funds in his account; b. 6 October 1987: he failed to go to his appointed place of duty at the prescribed time; and c. 24 August 1988: he wrongfully used cocaine, a schedule II controlled substance. His punishment for this offense included a reduction to specialist, pay grade E-4. 6. On 3 October 1988, the applicant’s commander recommended his separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations), Chapter 14, for misconduct due to his admission in a sworn statement of using cocaine in the summer of 1987 7. On 3 October 1988, the applicant consulted with counsel. He requested to appear before an administrative separation board and to have representation. 8. On 11 January 1989, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued an UOTHC discharge. 9. Accordingly, on 7 April 1989, the applicant was discharged UOTHC. He completed 5 years, 2 months, and 14 days of creditable active duty service. 10. On 13 January 1997, the Army Discharge Review Board (ADRB) considered the applicant’s request for an upgrade of his discharge. The ADRB determined that his characterization of service was proper. However, it found the reason for his discharge to be inequitable and changed it to read “Misconduct.” 11. Army Regulation 635-200 (Personnel Separations), 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 a pattern of misconduct and commission of a serious offense. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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 (emphasis added), 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his UOTHC discharge should be upgraded to honorable because of his good prior service and his continuance to Soldier on even though he was under a lot of stress and suffering from depression. 2. The record shows the applicant accepted three NJPs and subsequently admitted to his commander that he had used cocaine. These actions greatly diminished the applicant's record of good service. 3. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. 4. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case. 5. In 1997, the ADRB voted to change the reason for the applicant’s discharge to read “Misconduct.” It appears this action was based on the fact that the only evidence against him was his own sworn statement. 6. The applicant has not provided any substantiating evidence or convincing argument to support his contention that his misconduct was due to any medical or mental condition. 7. In view of the foregoing, the applicant's 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) AR20110020309 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007122 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1