RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 September 2007
	DOCKET NUMBER:  AR20070006167 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Ronald D. Gant

Member

Mr. Rowland C. Heflin

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 his under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect, that his discharge should be upgraded. 

3.  The applicant did not provide any additional documentary 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.  The applicant's records show that he enlisted in the Regular Army on 11 July 1980.  He completed basic and advanced individual training and was awarded military occupational specialty 63B (Light Wheel Vehicle/Power Generator Repairman).  Records further show that the highest rank the applicant held while on active duty was private first class/pay grade E-3.

3.  The applicant's records show he was awarded the Army Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and the Expert Marksmanship Qualification Badge with Grenade Bar.  The applicant's records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 12 December 1980 for wrongfully possessing a smoking device with marijuana on 3 November 1980.  His punishment consisted of forfeiture of $175 pay for two months, except $125 per month was suspended until 15 May 1981, 30 days of restriction, and 30 days of extra duty. 
5.  On 4 January 1982, the applicant pled guilty at a Summary Court-Martial to one specification of possessing marijuana on or about 12 September 1981 and one specification of wrongfully using marijuana on or about 12 September 1981.  The Court sentenced the applicant to reduction to the grade of private/pay grade E-1, forfeiture of $367 pay for one month, and confinement at hard labor for 30 days.  The sentence was adjudged on 5 February 1982 and approved on 8 February 1982.

6.  The applicant's records show that he was confined during the period 5 February 1982 through 1 March 1982.

7.  On 9 March 1982, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ, for being found sleeping upon his post on 6 March 1982.  His punishment consisted of 7 days of restriction, 7 days of extra duty, and forfeiture of $75 pay for one month.

8.  On 12 March 1982, the applicant’s immediate commander initiated separation action against the applicant in accordance with paragraph 14-33 of Army Regulation 635-200 (Personnel Separation) for misconduct-frequent incidents of a discreditable nature.

9.  On 15 March 1982, the applicant acknowledged receipt of the separation memorandum and on 16 March 1982, he consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of a general discharge, and of the procedures/rights that were available to him.

10.  On 30 March 1982, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200 by reason of patterns of misconduct-frequent incidents and directed the applicant be furnished an Under than Honorable Conditions Discharge Certificate.  The DD Form 214 the applicant was issued at the time of his discharge confirms he was discharged with a characterization of service of under other than honorable conditions.  This form further confirms that he completed a total of 1 year, 8 months, and 5 days of creditable active military service.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 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.  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.

12.  Army Regulation 635-200, paragraph 3-7a, provides 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  Army Regulation 635-200, paragraph 3-7b, 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 AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded. 

2.  The applicant's record of service shows that he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for wrongfully possessing a smoking device with marijuana and for being found sleeping upon his post.  Additionally, he was charged, pled guilty, and was convicted for one count of possessing marijuana and one count of wrongfully using marijuana.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to a general or an honorable discharge.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jev___  __rdg___  __rch___  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.



							James E. Vick
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070006167
SUFFIX

RECON

DATE BOARDED
20070919
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19820409
DISCHARGE AUTHORITY
AR 635-200, Chap 14
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.