BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20160004567 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 BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20160004567 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. BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20160004567 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, under honorable conditions discharge to an honorable discharge. 2. The applicant states: a. It has been over 15 years and he took an oath to serve and protect his country. This oath was embedded in him as an adolescent even before he came to understand the true meaning of serve and protect. When he signed up for boot camp and later became a tank commander, he took his responsibility and job very seriously. b. He was in this role as a tank commander for over 6 years and he made an immature mistake that left him with a blemish on his military record. This one mistake does not define his experience and growth in the military. c. When people thank him for his service, he would like to hold his head up high and say, "You’re welcome," without any second thought for his past mistake. Although his record states that he was discharged with a general discharge, he would like his record to reflect an honorable discharge, in light of his post-service success. d. After going through his military record and all the documentation, he applied for benefits. It was brought to his attention that this type of discharge (general) does not allow him to partake in benefits that are provided to veterans. 3. The applicant provides does not provide any supporting documentation. 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 28 October 1981, the applicant enlisted in the Regular Army (RA). After his initial training and advanced individual training, he was awarded military occupational specialty (MOS) 19E (Armor Crewman). On 18 June 1985, the applicant was discharged for immediate reenlistment on 19 June 1985. 3. The evidence of record shows on three separate occasions, 19 May, 2 June, and 16 June 1988, the applicant tested positive for cocaine use during commander directed unit inspections. 4. The applicant's record contains a letter of counseling, dated 18 May 1988, and seven DA Forms 4856 (General Counseling Form), dated from 10 June to 29 July 1988, which show he was counseled on his substandard personal appearance, failure to be at his appointed place of duty, tardiness, positive urinalysis tests, and lackluster performance and apathetic attitude. 5. On 29 July 1988 the applicant received a mental status evaluation by a Medical Corps officer. His status revealed the following results: * Behavior – normal * Level of Alertness – fully alert * Level of Orientation – fully oriented * Mood or affect – unremarkable * Thinking process – clear * Thought content – normal * Memory – good During the mental health evaluation, the provider noted that the applicant had the mental capacity to understand and participate in the chapter 14 proceedings and was not suicidal or homicidal. 6. On 1 August 1988, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go, at the time prescribed, to his appointed place of duty and dereliction of duty. He received a reduction to private first class (PFC)/E-3, forfeiture of $208.00, and restriction and extra duty for 14 days. 7. On 5 August 1988, the unit commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14. Specifically, the commander stated the basis for his action was the applicant's NJP, his numerous counseling statements, and three positive urinalysis tests for cocaine use. He recommended the applicant receive a separation under other than honorable conditions. The applicant acknowledged receipt of the notification memorandum on 9 August 1988. 8. On 9 August 1988 after consulting with counsel, the applicant requested representation by counsel, to submit a statement in his own behalf (no statement was found), and he waived consideration of his case by an administrative separation board, in lieu of consideration of a general discharge. He acknowledged that as a result of issuance of a separation under other than honorable conditions, he may be ineligible for many or all benefits as a Veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. He understood that if he received a discharge certificate/character of service, which is less than honorable, he may make an application to the Army Discharge Review Board or the ABCMR for upgrading. He understood that he may, up until the date the separation authority orders, directs, or approves his separation, withdraw his waiver and request that a board of officers hears his case. He further understood that he will be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after his discharge. 9. On 9 August 1988, by memorandum, the commander stated the applicant had demonstrated an inability or unwillingness to meet acceptable standards required of enlisted personnel in the Army. This failure was evidenced by the existence of his commission of a serious offense and conduct prejudicial to good order and discipline. Therefore, he recommended the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, and issued a discharge characterization of under other than honorable conditions. He also noted the rehabilitation requirement of Army Regulation 635-200, paragraph 1-18 and 1-18d needed to be waived, since the applicant was not amenable to this sort of rehabilitation, and in his judgement reassignment for rehabilitation was unwarranted. 10. On 12 August 1988, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, directing the issuance of a General Discharge Certificate and that further rehabilitation efforts were waived. 11. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under honorable conditions on 18 August 1988 by reason of misconduct, commission of a serious offense. He completed 6 years, 9 months, and 21 days of active duty service. 12. There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 14 provides separation guidance for various types of misconduct. Paragraph 14-12c(2) provides for the separation of a Soldier by reason of the commission of a serious offense, which includes drug abuse. The issuance of a discharge under other than honorable conditions was normally considered appropriate for separations under the provisions of chapter 14. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends he should receive a discharge upgrade based on a single mistake during his 6 years of service. He is also seeking benefits. 2. The evidence of record shows that the applicant received counseling by his leadership on numerous occasions and tested positive for cocaine use on three separate occasions. He also received NJP and was afforded the opportunity to consult with counsel when he accepted NJP and during his separation process. 3. The evidence shows 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 fact that the applicant served 6 years prior to his offenses is noted. However, based on his many incidents of misconduct, the separation authority determined his service did not rise to the level required for an honorable discharge. 5. According to Army Regulation 635-200, abuse of illegal drugs is serious misconduct. In the absence of evidence to the contrary, it appears that all the requirements of law and regulations were met. The available evidence contains no indication of procedural or other errors that would have jeopardized his rights. 6. The ABCMR does not upgrade discharges solely for the purpose of making a Veteran eligible for benefits. Each case is considered on its own merits when a Veteran requests an upgrade of a discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004567 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004567 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2