IN THE CASE OF:	

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090013966 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states, after being a model Soldier for 2 years and 2 months, he was denied the chance to complete his enlistment.  He was subjected to harassment and brutality.

3.  The applicant provides no documentation to support his request. 

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 enlisted in the Regular Army on 30 November 1982.  He completed training and was awarded military occupational specialty 19E (Armor Crewman).  He was advanced to pay grade E-2 on 30 April 1983 and to pay grade E-3 in 30 November 1983.  This was the highest grade that he achieved.

3.  On 11 April 1984, the applicant was found to be in possession of marijuana. He was also counseled, on 24 May 1984, for missing movement.

4.  On 27 July 1984, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for possession and use of marijuana and for being absent from his appointed place of duty.  Part of the punishment was suspended, but the suspended portion of the punishment was vacated on 4 October 1984 due to willful disobedience of a lawful order from a commissioned officer to submit a urine sample for testing.

5.  He received a second NJP for the above mentioned willful disobedience and for breaking restriction.

6. The applicant was convicted by a summary court-martial, on 13 December 1984, due to being absent without leave (AWOL) from 27 October to 3 November 1984; from 4 November to 18 November 1984; and for two instances of breaking restriction.

7.  The company commander recommended the applicant be separated for a commission of a serious offense.  

8.  On 25 January 1985, the applicant consulted with counsel and voluntarily waived his right to have a board of officers consider his case; he also waived further representation by council.  He indicated that he was not submitting statements in his own behalf.  He acknowledged that he could expect to encounter substantial prejudice in civilian life as the result of a discharge under other than honorable conditions and that he could be deprived of veteran benefits under both Federal and/or state laws.

9.  The battalion and brigade commanders recommended approval of the discharge recommendation. 

10.  The separation authority approved the recommendation and directed that the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.

11.  The applicant was accordingly separated on 25 February 1985 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct- commission of a serious offense.

12.  Army Regulation 635-200 (Personnel Separations) 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 [one for which a punitive discharge is authorized as the sentence of a court martial], 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.  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.

13.  The Manual for Courts-Martial Table of Maximum Punishments provides that a punitive discharge is authorized for missing movement, possessing and/or using illegal drugs, willful disobedience and breaking restriction.

14.  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.  

15.  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 states, after being a model Soldier for 2 years and 2 months, he was denied the chance to complete his enlistment.  He was subjected to harassment and brutality.


2.  The applicant's contentions that he was a model Soldier for 2 years and 
2 months is unfounded.  On 11 April 1984, only 1 year, 4 months and 11 days after he entered active duty, he was found with marijuana.  This, in and of itself, was a serious offense for which the applicant could have been sentenced to a punitive discharge.  His misconduct clearly made him ineligible for promotion and there is no evidence available that indicates he was harassed or brutalized.

3.  The discharge process was completed in accordance with applicable law and regulations and the applicant's service was appropriately characterized.  The available evidence is not sufficient to grant his request.

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 record does not contain any evidence and the applicant failed to submit any evidence that would satisfy this requirement.

5.  In view of the above, there is no basis for granting the requested relief.

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)                                         AR20090013966



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ABCMR Record of Proceedings (cont)                                         AR20090013966



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