IN THE CASE OF: BOARD DATE: 19 May 2016 DOCKET NUMBER: AR20150010382 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: 19 May 2016 DOCKET NUMBER: AR20150010382 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: 19 May 2016 DOCKET NUMBER: AR20150010382 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 to a fully honorable discharge. 2. The applicant states: * he admits that he made a terrible mistake at the time and he has regretted his decision to leave the military * his life has not been perfect or easy; but, he has addressed the issues of anger as well as the drugs and alcohol * he has attended and he continues to attend counseling sessions and/or meetings and he has learned different ways to manage his anger * he has also tried to improve his education and he has found God through all of this adversity in his life * he was young at the time and he takes full responsibility for his actions 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Multiple certificates of participations and completion * Training transcripts 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. The applicant was born in March 1976 and enlisted in the Regular Army on 22 April 1994 at the age of 18. He held military occupational specialty 88M (Motor Transport Operator). 3. Following completion of training, he was assigned to the 82nd Replacement Detachment, Fort Bragg, NC. 4. On 3 November 1994, he participated in a unit urinalysis and his urine sample tested positive for cocaine. 5. On 16 November 1994, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for operating a passenger car while drunk. 6. On 5 December 1994, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations Enlisted Personnel) for misconduct - commission of a serious offense. He cited the applicant's positive urinalysis and recommended the issuance of a general discharge. 7. On 5 December 1994, the applicant acknowledged receipt of the commander's intent to separate him. He was offered the opportunity to consult with counsel but declined. He was also advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He declined to make a statement in his own behalf. The applicant further acknowledged he understood that he: * could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him * could be ineligible for many or all benefits as a veteran under both Federal and State laws as a result of the issuance of a discharge under other than honorable conditions 8. Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct - commission of a serious offense. The immediate commander recommended the issuance of a general discharge. 9. On 6 December 1994, the separation authority approved the recommendation under the provisions of chapter 14, Army Regulation 635-200 by reason of misconduct and directed the issuance of a general discharge. Accordingly, the applicant was discharged on 28 December 1994. 10. His DD Form 214 confirms he was discharged under the provisions of chapter 14, Army Regulation 635-200 by reason of misconduct with a general discharge. This form further confirms he completed 8 months and 7 days of net active service his period. 11. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 12. He provides an Official Training Transcripts, dated July 2014, showing he completed multiple technical courses at the Southeast Kansas Education Service Center, and other certificates showing completion of anger management programs. REFERNCES: Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. 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 under other than honorable conditions was 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. b. Paragraph 3-7a, states 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. DISCUSSION: 1. The applicant committed a serious offense in that he tested positive for cocaine at a unit urinalysis. Accordingly, his chain of command initiated separation action against him for misconduct under the provisions of chapter 14 of Army Regulation 635-200. He was advised of and exercised his rights. 2. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. He was accordingly discharged under the provisions of chapter 14 of Army Regulation 635-200 due to this misconduct. 3. The applicant was 18 years of age when he enlisted and nearly 19 years of age when he committed his serious offense. However, there is no evidence he was any less mature than other Soldiers of the same age who successfully completed their term of service. 4. There is an insufficient basis on which to upgrade his discharge to fully honorable. His discharge is appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. His service did not rise to the level required for an honorable characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010382 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010382 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2