RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 December 2007
	DOCKET NUMBER:  AR20070010825 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Jeffrey Redmann

Chairperson

Mr. John Heck

Member

Mr. Qawiy A. Sabree

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 characterized as under other than honorable conditions (UOTHC) be upgraded to a general discharge.  

2.  The applicant states, in effect, that he was not given a chance to explain what happened and was not offered any counseling, mental evaluation, or rehabilitation. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and even though he indicates he has attached a letter in support of his request, the letter is not available for the Board's review.

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 record shows he enlisted in the Regular Army on 27 April 1978, for 3 years, with an established expiration of term of service (ETS) of 26 April 1981.  He successfully completed basic combat training at Fort Dix, New Jersey, and advanced individual training at Fort Belvoir, Virginia.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 52C, Utilities Equipment Repairman.  He was advanced to pay grade E-2 on 2 October 1978.

3.  On 30 November 1978, the applicant was punished under Article 15, UCMJ (Uniform Code of Military Justice), for failing to go to his appointed place of duty and for leaving his appointed place of duty.  His punishment consisted of a forfeiture of pay (suspended) and 7 days restriction and extra duty. 

4.  The applicant was advanced to pay grade E-3 on 27 April 1979. 

5.  On 15 July 1979, the applicant was charged by civil authorities for possession of marijuana, a controlled substance, the amount being less than one ounce, which was in violation of the Georgia Substance Control Act.  He waived trial by jury and pled guilty.  He was sentenced to confinement for 12 months and a fine of $300.00, to be paid within a period of 120 days at the rate of $75.00 per month. 

6.  Between 20 September 1979 and 10 October 1979, he received nonjudicial punishment (NJP) on two occasions under Article 15, of the UCMJ, for failing to go to his appointed place of duty on three occasions.  His punishments consisted of a reduction to pay grade E-2, a forfeiture of pay, and restriction and extra duties.

7.  On 11 October 1979, the applicant underwent a mental status evaluation which revealed a fully oriented, alert individual, whose behavior was normal.  His mood was level, his thinking process was clear, his thought content was normal, and his memory was good.  The impression section of the evaluation form indicated that he had no significant mental illness.  It was determined that he was mentally responsible and could distinguish right from wrong and adhere to the right.  He possessed sufficient mental capacity to understand and participate in board proceedings.  He met the retentions requirements of Army Regulation    40-501, chapter 3.  

8.  On 22 October 1979, the applicant's commander advised the applicant he was taking action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, due to conviction by civil court.  He was advised of his rights to counsel, to present evidence, and to appear before a board of officers.  On that same day, he acknowledged receipt.

9.  On 26 October 1979, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 14, before his ETS, for misconduct.  He based his reasons on the applicant's civil court conviction for possession of marijuana.

10.  On 28 November 1979, the applicant was punished under Article 15, UCMJ, for breach of peace.  His punishment consisted of a reduction to pay grade E-1, a forfeiture of pay, and 14 days extra duty.

11.  On 28 November 1979, after consulting with counsel, the applicant requested consideration of his case by an appearance before a board of officers.  He also requested representation by counsel and elected not to submit a statement in his own behalf.  
12.  On 20 December 1979, the applicant appeared before the separation board with counsel.  The separation board found that the applicant was undesirable for further retention in the service by reason of his misconduct, both for civil conviction and frequent incidents of discreditable nature with military authorities, and his rehabilitation was not deemed practical.  

13.  The board recommended that he be discharged from the service by reason of misconduct with the issuance of an UOTHC discharge.

14.  The applicant was discharged on 7 February 1980, under the provisions of Army Regulation 635-200, chapter 14, for misconduct-conviction by civil court.  He had completed 1 year, 9 months, and 11 days of creditable service.

15.  On 19 March 1982, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

16.  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 is 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.

17.  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 evidence of record shows that the applicant had a pattern of misconduct. He received four Article 15s, under the UCMJ, for misconduct and was convicted by civil authorities for possession of marijuana.  He waived trial by jury and pled guilty and was sentenced to confinement for 12 months and a fine of $300.00, to be paid within a period of 120 days at the rate of $75.00 per month.  


2.  The applicant was recommended for separation under the provisions of Army Regulation 635-200, due to his conviction by civil court.  He consulted with counsel and was advised of his options.  He elected to appear before a board of officers and elected not to submit a statement in his own behalf.  The board of officers found the applicant undesirable for further retention by reason of his misconduct and recommended that he be discharged. 

3.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14, for misconduct-conviction by civil court.  He was issued an UOTHC discharge.

4.  The applicant contends that he was not given chance to explain what happened, was not offered any counseling or mental evaluation, or rehabilitation. The evidence shows that he consulted with counsel and elected not to submit a statement in his own behalf.  He underwent a mental status evaluation and was found to be mentally responsible.  He met the retention standards of Army Regulation 40-501, chapter 3, and possessed the mental capacity to understand and participate in board proceedings.  His mental evaluation indicated no significant mental illness at the time of his evaluation.  The board of officers found that rehabilitation was not deemed practicable.  

5.  The applicant has provided no evidence to show that his discharge was unjust nor has he provided evidence sufficient to mitigate the character of his discharge.

6.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UOTHC discharge to a general discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__QS___  __JR  ___  __JH____  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.




_____Jeffrey C. Redmann___
          CHAIRPERSON




INDEX

CASE ID
AR20070010825
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071213
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19800207
DISCHARGE AUTHORITY
AR 635-200, chapter 14
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.