BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090008522 


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 undesirable discharge (UD) be upgraded.

2.  The applicant states, in effect, he was well disciplined in the military.  He states “never said again to any one that, I will continue to smoke marijuana,” he  was never caught with marijuana, and he was wrongly accused of this offense.  He also states the MPs falsely accused him of assault when in fact they assaulted him.  He claims he would now like a chance to get his life together.  

3.  The applicant provides no 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 record shows he enlisted in the Regular Army and entered active duty on 12 September 1972.  He was trained in, awarded, and served in military occupational specialty (MOS) 71B (Clerk Typist), and the highest rank he attained while serving on active duty was specialist four (SP4).  His record documents no acts of valor or significant achievement.  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in Item 9 (Awards and Decorations), that he earned the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  Item 21 (Time Lost) shows he accrued 158 days of time lost due to being absent without leave (AWOL) and in confinement.  

4.  On 22 January 1973, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing marijuana.  His punishment for this offense was a reduction to private/E-1 (PV1) and a forfeiture of $150.00 pay per month for two months.

5.  On 26 September 1973, a Special Court-Martial (SPCM) convicted the applicant of violating Article 86 of the UCMJ by being AWOL from on or about 
7 June through on or about 14 August 1973.  The resultant sentence was confinement at hard labor for 2 months and a forfeiture of $100.00 per month for 2 months (suspended until 16 January 1974, at which time unless sooner vacated, the suspended portion of the sentence will be remitted without further action).

6.  On 21 January 1975, the applicant accepted NJP for violating a lawful general regulation by having in his possession 14.23 grams, more or less, of marijuana.  His punishment for this offense was a reduction to private first class (PFC), a forfeiture of $100.00, and 14 days extra duty.

7.  On 6 March 1975, the applicant accepted NJP for violating a lawful general regulation by possessing 1.25 grams, more or less, of marijuana and for resisting lawful apprehension by an armed forces policeman.  His punishment for this offense was a reduction to PV1.

8.  On 3 April 1975, the unit commander notified the applicant of his intent to initiate separation action on him under the provisions of chapter 13-5a, 
Army Regulation 635-200, for unfitness.  

9.  On 3 April 1975, the applicant completed an election of rights and requested that his case be considered by a board of officers with personal appearance and representation by his counsel.  He further elected not to submit a statement in his own behalf.  

10.  On 4 June 1975, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation action and of the rights available to him and of the effects of a waiver of those rights, completed a new election of rights in which he waived consideration of his case and a personal appearance before an administrative separation board, and his right to consulting counsel.  He further stated that his election to waive his rights to a board of officers was made of his own free will without any undue influence by his counsel or any other person.  

11.  On 18 June 1975, the separation authority approved the separation action and directed the applicant receive a UD.  

12.  On 21 July 1975, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant upon his discharge shows he was separated under the provisions of paragraph 13-5a(1), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of unfitness (Frequent involvement of a discreditable nature with authorities) and that he received a UD.  This document also shows he completed a total of 2 years, 5 months, and 2 days of creditable active military service.  It also shows he accrued 161 days of lost time due to AWOL and confinement.

13.  On 2 June 1982, the Army Discharge Review Board, after careful consideration of the applicant's military records and all other available evidence, determined that the applicant's discharge was proper and equitable and voted to deny his request for an upgrade of his discharge.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the version of the regulation in effect at the time contained the policy and outlined the procedures for separating individuals for unfitness.  An UD was normally considered appropriate for members separated under these provisions.  The separation authority could grant a general discharge (GD) or honorable discharge (HD) if it was warranted based on the member's overall record of service. 

15.  Paragraph 3-7a of Army Regulation 635-200 provides that an HD 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.  Paragraph 3-7b provides that a GD 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's request that his UD be upgraded has been carefully considered.  However, there is an insufficient evidentiary basis to support granting the requested relief. 

2.  The applicant's record documents no acts of valor or significant achievement; however, it does reveal an extensive disciplinary history that includes his acceptance of NJP on three separate occasions for offenses that included the wrongful possession of marijuana.  It also includes an SPCM conviction for AWOL. This extensive record of misconduct clearly did not support the issue of an HD or GD by the separation authority at the time of his discharge and does not support an upgrade at this late date. 

3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met, the applicant's rights were fully protected throughout the separation process, and his discharge accurately reflects his overall record of undistinguished service.  

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.

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.




      _______ _   _x______   ___
               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)                                         AR20090008522



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ABCMR Record of Proceedings (cont)                                         AR20090008522



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