IN THE CASE OF:	  

		BOARD DATE:	        07 OCTOBER 2008

		DOCKET NUMBER:  AR20080008557 


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, in effect, that his discharge under other than honorable conditions be upgraded to an honorable or general discharge. 

2.  The applicant essentially states that his discharge was due to the sudden death of his fiancé, and that he lost all reality and could no longer perform his duties.

3.  The applicant provides no additional evidence in support of this 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 military records show that he enlisted in the Regular Army on 12 February 1980.  He completed basic and advanced individual training and was awarded military occupational specialty 16R (Air Defense Artillery Short Range Gunnery Crewman).  After completing airborne training, he was assigned to Fort Bragg, North Carolina for what would be his first and only permanent duty station.

3.  In an undated letter, the applicant's commanding officer certified that the applicant was formally counseled on five occasions between 30 April 1981 and 29 October 1981 for having a poor attitude, failure to repair on two occasions, missing formation, and failing to follow orders.

4.  On 31 March 1981, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully having in his possession 10 grams, more or less, of marijuana.  His punishment consisted of reduction in rank and pay grade from private first class/E-3 to private/E-2 and a forfeiture of $130.00 pay per month for 1 month.

5.  On 19 November 1981, the applicant accepted NJP under Article 15 of the UCMJ for wrongfully having in his possession some amount, more or less, of marijuana.  Having been promoted back to private first class/E-3 after his last reduction in rank, his punishment consisted of a second reduction in rank to private/E-2 and extra duty for 14 days.

6.  On 6 January 1982, the applicant's commanding officer advised him that he intended to recommend him for discharge under the provisions of Chapter 14 (Separation for Misconduct), Army Regulation 635-200 (Enlisted Personnel).  He was also advised of his rights, which included presenting his case before a board of officers, submitting statements in his own behalf, and consulting with and being represented by counsel.  

7.  On 14 January 1982, the applicant accepted NJP under Article 15 of the UCMJ for wrongfully having in his possession some amount, more or less, of marijuana.  His punishment consisted of reduction in rank and pay grade from private/E-2 to private/E-1, a forfeiture of $275.00 pay per month for 2 months, and correctional custody for 30 days.  However, on 11 February 1982, the applicant's punishment of correctional custody for 30 days was suspended and ultimately remitted without action.

8.  On 4 February 1982, a mental status evaluation was conducted on the applicant, and the medical officer who conducted this evaluation determined that 

the applicant had a depressive personality which was characterized by flat affect and a poor self-image.  However, he also essentially cleared the applicant for any administrative action deemed appropriate by his command.  The applicant also had a physical examination conducted on this date, and the medical officer who performed this examination found that the applicant had depression and situational worries as a result of his three records of NJP for possession of marijuana.  He was also found qualified for a Chapter 14 discharge. 

9.  A DA Form 4466 (Alcohol and Drug Abuse Prevention and Control Program [ADAPCP] Client Progress Report), dated 4 March 1982, essentially shows that the applicant was not progressing in the ADAPCP, and that his command found his efficiency and conduct unsatisfactory.  It also shows that the applicant was being moved from Track I to Track II of the ADAPCP due to his need for more intense services.

10.  On 21 May 1982, the applicant acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for misconduct under the provisions of Army Regulation 635-200, Chapter 14 and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  The applicant waived consideration of his case before a board of officers, and waived personal appearance before a board of officers, and also elected not to submit a statement in his own behalf.  The applicant also waived consulting counsel.  He also acknowledged that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further understood that, as the result of issuance of a discharge 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 could expect to encounter substantial prejudice in civilian life.  

11.  On 2 June 1982, the proper separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, Chapter 14 and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  On 16 June 1982, the applicant was discharged accordingly.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.



13.  The applicant essentially stated that his discharge was due to the sudden death of his fiancé, and that he lost all reality and could no longer perform his duties.

14.  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 included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted. 

15.  Army Regulation 635-200, paragraph 3-7a also provides, in pertinent part, 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.

16.  Army Regulation 635-200, paragraph 3-7b further provides, in pertinent part, 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.

17.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This 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 AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable or general discharge. 

2.  While the sincerity of the applicant's claim that his fiancé at the time died suddenly is not questioned, he provided no evidence to support this claim.  However, if in fact the applicant's fiancé did pass away suddenly, there is no evidence in the applicant's military records, and the applicant failed to provide any evidence which shows that he requested any assistance from his chain of command or any external advocacy offices such as the chaplain or the Mental Hygiene Consultation Service with any personal problems he was having.

3.  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.

4.  The evidence of record clearly shows that the applicant accepted NJP under Article 15 of the UCMJ on three occasions for wrongfully possessing marijuana, and that he was counseled on at least five occasions for having a poor attitude, failure to repair on two occasions, missing formation, and failing to follow orders.
As a result, his subsequent discharge under the provisions of Army Regulation 635-200, Chapter 14 was appropriate.  The applicant failed to provide any evidence which proves that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  

5.  Based on his record of indiscipline during such a brief period of military service, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general discharge.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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.

ABCMR Record of Proceedings (cont)                                         AR20080008557



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ABCMR Record of Proceedings (cont)                                         AR20080008557



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