IN THE CASE OF:	  

		BOARD DATE:	        21 OCTOBER 2008

		DOCKET NUMBER:  AR20080009127 


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 there is no error or injustice in his military record, but asks that the Army Board for Correction of Military Records (ABCMR) upgrade his discharge, citing his length of service and him receiving an honorable discharge prior to his discharge under other than honorable conditions.  He also essentially feels that he was punished twice by being kicked out of the Army and being reduced in rank and pay grade from specialist four/E-4 to private/E-1.  He further states that his records will show that he never had any trouble on post, and that he had a number of awards.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 17 April 2008 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 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 
25 October 1978.  He completed initial entry training and was awarded military occupational specialty 19E (Armor Crewman).  However, prior to completing this training, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (twice).  His offenses consisted of assaulting a fellow Soldier by striking at him with his fist and willfully disobeying a lawful order from his superior noncommissioned officer (NCO).  Collectively, his punishment for these two offenses was forfeiture of $97.00 pay per month for 1 month, 21 days of restriction to his company training area, with 7 days suspended for 30 days and ultimately remitted without action, and 21 days of extra duty, with 7 days suspended for 30 days and ultimately remitted without action.  He was then reassigned to Fort Hood, Texas for what would be his first and only permanent duty station.

3.  On 23 May 1980, the applicant accepted NJP under Article 15 of the UCMJ for willfully disobeying a lawful order from his superior NCO on two occasions and being disrespectful in language towards his superior NCO.  His punishment consisted of reduction in rank and pay grade from private first class/E-3 to private/E-2, which was suspended for 90 days and later remitted without action, a forfeiture of $117.00 pay per month for 1 month, extra duty for 12 days, and restriction for 12 days.

4.  On 23 November 1981, the applicant was tried by a civil court and found guilty of delivery of marijuana for remuneration [pay].  He was sentenced to confinement for 
5 years and a fine of $500.00; however, his confinement for 5 years was further ordered to be probated for 5 years.

5.  On 23 March 1982, the applicant accepted NJP under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on two occasions and being disrespectful in deportment towards his superior NCO.  His punishment consisted of reduction in rank and pay grade from specialist four/E-4 to private first class/E-3, which was suspended for 60 days, 14 days of restriction, 14 days of extra duty, and a forfeiture of $160.00 pay per month for 1 month.  The applicant appealed, and on 1 April 1982, his reduction in rank and pay grade from specialist four/E-4 to private first class/E-3, which was suspended for 60 days, was eliminated.

6.  On 5 May 1982, the applicant accepted NJP under Article 15 of the UCMJ for breaking restriction on two occasions.  His punishment consisted of a forfeiture of $275.00 pay per month for 1 month, with $200.00 suspended for 60 days.

7.  On 24 May 1982, a mental status evaluation was conducted on the applicant, and he was essentially cleared for any administrative action deemed appropriate by his command.

8.  In an undated letter, the applicant's commanding officer notified him of his intention to initiate action under the provisions of Chapter 14 (Separation for Misconduct), Army Regulation 635-200 (Enlisted Personnel) which may result in the applicant's separation from the United States Army based on his civil conviction for delivery of marijuana for remuneration.  

9.  In an undated endorsement, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated action to separate him under the provisions of Chapter 14, Army Regulation 635-200 for conviction by a civil court. He also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that, as the result of the 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.  He waived consideration of his case and personal appearance before a board of officers, and waived representation by counsel.  He also did not elect to submit statements in his own behalf.  

10.  On 17 June 1982, the proper separation authority approved the applicant's discharge, and directed that he be separated, under the provisions of Chapter 14, Army Regulation 635-200, due to a civil conviction with an under other than honorable conditions discharge.  On 21 June 1982, he was discharged accordingly.  

11.  In a letter, dated 1 March 1984, the Army Discharge Review Board informed the applicant that his request for an upgrade of his discharge was denied.

12.  The applicant essentially stated that there is no error or injustice in his military record, but asks that the ABCMR upgrade his discharge, citing his length of service and him receiving an honorable discharge prior his discharge under other than honorable conditions.  He also essentially feels that he was punished twice by being kicked out of the Army and being reduced in rank and pay grade from specialist four/E-4 to private/E-1.  He further stated that his records will show that he never had any trouble on post, and that he had a number of awards.

13.  The applicant's military records show that he was awarded the Noncommissioned Officer Professional Development Ribbon with Numeral "1" Device, the Army Service Ribbon, and the Expert Marksmanship Qualification Badge with Pistol Bar.  There is no evidence of the applicant being awarded any personal awards or decorations for achievement or service.
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, Chapter 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, Chapter 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.

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.  The applicant's contention that he never had any trouble on post was considered, but rejected.  The applicant accepted NJP under Article 15 of the UCMJ on at least five occasions for multiple offenses.  

3.  The applicant's contention that he had a number of awards was also considered, but not found to have any merit.  While the applicant may have been presented some certificates of achievement and letters of commendation, he was never personally authorized an individual award or decoration such as the Army Achievement Medal, the Army Commendation Medal, or the Good Conduct Medal.


4.  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.

5.  The evidence of record shows the applicant was convicted of delivery of marijuana for remuneration by a civil court and, as a result, he was discharged under the provisions of Chapter 14, Army Regulation 635-200, for misconduct, due to a civil conviction.  The applicant failed to provide any evidence which proves the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.

6.  Based on his record of indiscipline, which included accepting NJP under Article 15 of the UCMJ on at least five occasions and being convicted by a civil court, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This 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

___X____  ___X____  ___X____  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)                                         AR20080009127



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ABCMR Record of Proceedings (cont)                                         AR20080009127



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