RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  7 August 2007
	DOCKET NUMBER:  AR20070003952 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Ernestine I. Fields 

Member

Mr. Randolph J. Fleming

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge under honorable conditions be upgraded to honorable. 

2.  The applicant states, in effect, that his commander used against him the fact that he was seeing a psychologist.  He further states that he was tested multiple times within a month and a half for marijuana use even though the command knew it took 30 days for a person’s system to clear itself after use.  He contends that this shows a concentrated effort by his commander to eliminate him from the service.  He further contends that he was offered a discharge based on his psychological problems which he should have accepted.     

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 15 February 1984.  The application submitted in this case is dated 
7 March 2007.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  On 6 May 1982, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty 19E1O (Armor Crewman).  

4.  On 22 August 1982, the applicant was assigned to Fort Benning, Georgia, for the purpose of attending the Basic Airborne Training Course.  Records indicate that he did not pass this course and was subsequently reassigned to Fort Riley, Kansas for duty as an armor crewman.

5.  On 16 February 1983, the applicant was assigned for duty as an armor crewman with the 4th Battalion, 73rd Armored Brigade, in the Federal Republic of Germany. 
6.  On 5 April 1983, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being disrespectful in language toward a noncommissioned officer.  The punishment included reduction to private, pay grade E1(suspended), a forfeiture of $100.00 pay per month for 1 month, and 14 days restriction and extra duty.  

7.  On 25 April 1983, the applicant was notified of five dishonored checks that he had written between 8 and 23 March 1983, and was required to make restitution.

8.  On 17 August 1983, the suspended reduction was vacated as a result of the applicant’s disrespect toward another noncommissioned officer.

9.  On 29 September 1983, the applicant accepted NJP for knowingly and wrongfully using marijuana.  The punishment included a forfeiture of $133.00 pay per month for 1 month and 14 days restriction and extra duty.

10.  On 28 December 1983, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct including the use of controlled substances, misappropriate of government property, and rehabilitative failure.  The commander indicated in his report that the applicant had received a rehabilitative transfer from the 3rd platoon to the 2nd platoon; had received numerous informal counseling sessions with everyone from his first line supervisor to the company commander; and was entered into the drug rehabilitation program immediately after his first charge for drug use.  

11.  On 28 December 1983, the applicant consulted with counsel concerning his rights.  He asked for consideration of his case by an administrative separation board.  He elected to make a statement in his own behalf.  However, any statement that he may have made is not available for review.  

12.  On 29 December 1983, the applicant accepted NJP for possession of drug paraphernalia and wrongful appropriation of a .45 caliber pistol barrel.  The punishment included a forfeiture of $286.00 pay per month for 1 month and 
45 days restriction and extra duty.

13.  On 17 January 1984, a medical examination found him to be qualified for separation with a physical profile of 1.1.1.1.1.1.  At a mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

14.  On 31 January 1984, the Assistant Staff Judge Advocate found that the administrative separation was legally sufficient and administratively correct.

15.  On 31 January 1984, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.

16. On 1 February 1984, the applicant accepted NJP for possession of drug abuse paraphernalia and marijuana.  The punishment included a forfeiture of $139.00 pay per month for 1 month and 14 days restriction and extra duty.

17.  Accordingly, on 15 February 1984, the applicant was discharged under the authority of Army Regulation 635-200, chapter 14-12c.  His character of service was under honorable conditions.   The separation code was JKQ.  The narrative reason for discharge was due to misconduct-commission of a serious offense.  The reenlistment code was 4.  He had completed 1 year, 9 months and 10 days of creditable active service.

18.  On 31 October 1984, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.  However, it did change the separation authority from paragraph 12c to 12b; the narrative reason for separation from misconduct due to commission of a serious offense to misconduct due to a pattern of misconduct; and the separation code and reenlistment code from JKQ, RE-4 to JKM, RE-3. 

19.  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 that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

20.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 
3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The record shows no less than six offenses in 10 months as well as an inadequate response to counseling and efforts for rehabilitation.  Clearly, this is a pattern of misconduct.

2.  There is no evidence of record to support the applicant’s contention that he was under the care of a psychologist or that he was offered any other type of discharge.

3.  The applicant’s administrative separation, as changed by the Army Discharge Review Board, was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 31 October 1984.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 30 October 1987.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_RJF____  _EF____  _LDS____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




Linda D. Simmons__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.