IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150006883 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150006883 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150006883 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 (GD) to an honorable discharge (HD). 2. The applicant states: a. He is requesting an upgrade in order to receive educational benefits. According to his command his discharge is upgradable. He is trying to be a productive member of society. b. His career began in a tank battalion at Fort Riley, KS. He was not involved in combat; however, he saw a lot of Soldiers going through post-traumatic stress disorder, family problems, and alcohol abuse. He had his own emotional problems. c. Too many military schools on record could be a serious adjustment problem for any service member trying to get a decent paying job. A few bad apples have ruined the way society views the programming of former military members. When a service member is accused of an act it could generate a thought process about hiring them. d. While at Fort Rucker, AL, he realized that his aptitude score, flight physical, and his warrant officer flight training packet were not going anywhere. While on active duty at the training installation he attempted to run the idea across his commander’s desk; however, his response was not good. His brigade was given a pass. He got himself in a jam and could not clearly explain himself. He lost his military career. e. He begged the battalion commander to give him a weapon and allow him to fight; however, because of his situation they could not find him a new home. He was expedited out of the service and was not to return. He would have taken any assignment. His patriotism and valor were not enough. If he were called back he could wear the uniform today. f. Many men did not return to their families. It could have been him or maybe he could have saved some lives and changed the world’s perspective about how the American military is viewed abroad. He would rather be marching in a fine institution than working for the corporate world. g. Technology is changing and certain jobs are being eliminated. Our constitution is challenged in regards to the world we live in and it appears education is the only way. He would like the opportunity to be productive and pursue a degree in information technology in order to better himself and provide for his family. After leaving the military he spent three years at Florida International University and realized his liberal studies degree was not "career binding". He is focused and ready to accept a more difficult challenge. 3. The applicant provides: * college transcripts * self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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. After having prior period of enlisted service in the Regular Army, the applicant enlisted in the Regular Army again on 2 January 2008. 3. On 9 April 2008, he accepted nonjudicial punishment under the provision of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using a controlled substance. His punishment consisted of reduction to private (PV1)/E-1, forfeiture of $300 per month for 2 months, 45 days extra duty, and 45 days restriction. 4. He was notified on 14 April 2008 of his commander's intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense. The reasons for his proposed action were: he had committed a serious offense by wrongfully using cocaine, he had tested positive on a urinalysis, and he had received a field grade Article 15. He informed him of his rights and recommended he receive a GD. 5. On 17 April 2008, he consulted with counsel who advised him of the basis for his contemplated separation action, its effects, and the rights available to him. After consulting with counsel, he elected to submit statements in his own behalf and exercise his right to counsel 6. On 21 April 2008, he submitted a response to his separation action. He stated in part: a. He had served in two different military occupational specialties (MOS) and had passed several tests. Although he had not completed his MOS training, he had successfully passed all exams leading to the final test. He had scored 300 points on his physical fitness test. He had been awarded the Army Good Conduct Medal, the Expert Marksmanship Qualification Badge, and other awards. b. It was his first drug offense and he would not let it happen again . He was capable of learning and had worked in higher levels of responsibility. He understood the military had policies to follow. The situation had impacted him and his family. He had received an acceptance letter from Florida International University and he could continue to excel if the military no longer considered him for employment. 7. An authorized official approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed that he be issued a GD Certificate. On 23 April 2008, he was discharged in accordance with the authorized official’s decision. He completed 3 months and 22 days of net active service this period. 8. The Army Discharge Review Board denied his request for an upgrade of his discharge on 31 August 2010. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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 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. DISCUSSION: 1. The evidence of record does not support the applicant's request for an upgrade of his GD. 2. The ABCMR does not upgrade discharges solely for the purpose of making an applicant eligible for benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. 3. The evidence shows he was properly and equitably discharged in accordance with the applicable regulations, that all requirements of law and regulation were met, and that his rights were fully protected throughout the separation process. 4. Although an under other than honorable conditions discharge would normally have been appropriate, his chain of command recommended he receive a GD, which the separation authority approved. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150006883 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006883 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2