IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150008020 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 spent his teen years as a dependent abroad with his parents. When he finally came back to the U.S., he was in culture shock, so he joined the Army. b. His first assignment was supposed to be in Germany but he received special orders to be stationed in Izmit, Turkey, for a solo tour. c. After completing his tour, he received orders to Fort Hood, TX, relatively close to his parents in San Antonio, TX. d. While in TX, he made the mistake of getting a girl pregnant out of wedlock which did not work out and she made his life miserable. e. Due to the stress, he made the mistake of using drugs while still in the military. f. After he was discharged and realized the stigma of having a GD, he banished himself from the U.S. and moved to Germany for the next 18 years. g. When his father became ill with cancer, he came back to spend the remaining time with his father until his death. h. He received a college degree in Kinesiology from Texas A & M using the Hazelwood Act and with his teacher’s certification, his involvement with youth sports and as an active member in his city’s heath collaborative program, he is able to be a mentor to try and prevent other kids from making the same mistakes he made. 3. The applicant provides no additional evidence in support of his application. 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 23 May 1984 the applicant enlisted in the Regular Army. After initial training he was awarded military occupational specialty (MOS) 31C (Single Channel Radio Operator). 3. His DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) from 7 June 1985 to 12 June 1985. 4. On 3 April 1986, the applicant received nonjudicial punishment (NJP) for three specifications of failure to go at the time prescribed to his appointed place of duty. He received extra duty and restriction for 14 days, and forfeiture of pay of $183.00 which was suspended for 60 days. 5. On 16 April 1986, the suspension of a portion of the applicant’s 3 April 1986 NJP was vacated due to further misconduct by failing to go at the time prescribed to his appointed place of duty, to wit: extra duty. 6. On 24 April 1986, the applicant received NJP for wrongful use of marijuana and failure to go to his appointed place of duty. He was reduced in grade, received extra duty for 45 days, and forfeiture of $300.00 per month for one month which was suspended for 120 days. 7. On 12 May 1986, the applicant's commander informed him by letter that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – abuse of illegal drugs. The commander advised the applicant of his right to have his case considered by a board of officers, to appear in person before a board of officers, to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge and request his case be presented before a board of officers. 8. On 21 May 1986, he consulted with counsel who advised him of the basis for his contemplated separation and its effects, of the rights available to him, and of the effect of a waiver of his rights. 9. After consulting with counsel, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, to submit statements in his own behalf, and counsel. He acknowledged he could expect to encounter substantial prejudice in civilian life if a GD were to be issued to him. He further acknowledged that, as the result of issuance of a GD, he could be ineligible for reenlistment in Army for a period of two years after discharge. 10. The applicant received a DA Form 3822-R (Report of Mental Status Evaluation) that stated that he had the mental capacity to understand and participate in the separation proceedings. 11. On 28 May 1986, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct, and directed he receive a GD Certificate and that he would not be transferred to the Individual Ready Reserve (IRR) because he clearly showed no potential for useful service under conditions of full mobilization. 12. On 11 June 1986, the applicant was discharged with a GD. He completed 2 years and 13 days of total active service. 13. There is no indication that the applicant applied for a review of his discharge by the Army Discharge Review Board within its 15-year statutory limit. 14. 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. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. The unit commander must insure that an appropriate mental status evaluation is obtained for Soldiers recommended for separation under this chapter. A discharge under other than honorable conditions (UOTHC) is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a GD if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an HD or delegate approval authority for an HD under this provision of the 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. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant received two NJP’s including one for illegal drug use. Records show the applicant's command ensured that the proper documents were prepared and that his rights were fully protected during separation processing. His separation was conducted in accordance with applicable regulatory guidelines. 2. The record contains no indication of procedural or other errors that would have jeopardized the applicant’s rights. However, based on his period of AWOL and drug use, it appears the applicant was given the advantage of a GD vice an OTH discharge, which is normally appropriate for a Soldier being discharged for misconduct in the form of drug use. 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) AR20140000352 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008020 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1