IN THE CASE OF: BOARD DATE: 8 February 2018 DOCKET NUMBER: AR20160007006 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. 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: 8 February 2018 DOCKET NUMBER: AR20160007006 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING SWF :MWM :RCH DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 8 February 2018 DOCKET NUMBER: AR20160007006 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, in effect, he would like to have his discharge upgraded because he is interested in getting Department of Veterans Affairs (VA) benefits. While on active duty, he went to a party and was unaware the food being served had marijuana in it. He had never been in trouble prior to this incident. He had a secret clearance and was a driver. He served with pride for over three years and hopes his excellent service would be enough to grant him a HD and forgive the error that was not of his doing. 3. The applicant provides a copy of his 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. The applicant enlisted in the Regular Army on 2 November 1990. 3. He accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice on 18 June 1993, for wrongfully using marijuana on or between 3 April 1993 and 3 May 1993. 4. On 9 August 1993, his company commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for commission of a serious offense. The commander stated the reason for the proposed action was the applicant's wrongful use of marijuana. 5. After consulting with counsel, he elected not to submit statements in his own behalf and exercise his right to counsel. He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a GD was issued to him. 6. On 20 August 1993, an authorized official approved the separation recommendation and directed the issuance of a GD. 7. On 27 August 1993, he was discharged in accordance with the authorized official’s decision. 8. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 was 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. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 2. Army Regulation 635-200, 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: 1. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. 2. 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. The record supports the reason and authority for his discharge. 3. He received a GD rather than a discharge under other than honorable conditions, which is normally considered appropriate for misconduct of this nature. The separation authority determined his service had not risen to the level required for an HD. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160007006 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007006 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2