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ARMY | BCMR | CY2009 | 20090020138
Original file (20090020138.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	  1 June 2010

		DOCKET NUMBER:  AR20090020138 


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 his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states the following:

	a.  The discharge action taken against him was not only completely unwarranted and a true miscarriage of justice, but if done today would have resulted in a completely different outcome;

	b.  Had he been afforded proper representation and was mature enough to understand what was happening to him, he could have completed his Army career;

	c.  Four other Soldiers and himself were arrested for using marijuana in his vehicle;

	d.  He received an Article 15 for possession of less than one eighth ounce of marijuana that was found tucked between the cushions of the back seat of his car and although he contested it was not his, he understood it was his car;

	e.  He made a minor mistake and was railroaded out of the Army with a GD; and

	f.  Given all the draft dodgers and the two elected Presidents who claimed to use drugs were pardoned, he should receive the same consideration. 
3.  The applicant provides a self-authored statement 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 initially enlisted in the Regular Army (RA) on 22 January 1971.  He served for 1 year, 9 months, and 2 days until 23 October 1972, at which time he was honorably discharged for the purpose of immediate reenlistment.  

3.  On 24 October 1972, the applicant reenlisted.  He held and served military occupational specialty 31M (Radio Relay and Carrier Attendant) and attained the grade of sergeant/E-5, the highest rank held on active duty, on 4 May 1973.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 9 September 1971 to 20 June 1972 and earned the following awards during his tenure on active duty:

* National Defense Service Medal
* Vietnam Service Medal with 3 bronze service stars
* RVN Campaign Medal with Device 1960
* Army Commendation Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Overseas Service Bar

5.  On 10 April 1974, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for possession of an unknown quantity of marijuana.  His punishment was a forfeiture of $200.00 a month for 2 months (second month suspended for 90 days), reduction to specialist four/E-4 (SP4/E-4), and 15 days extra duty.

6.  On 4 April 1974, the applicant underwent a mental status evaluation based on his being processed for separation that resulted in the following findings by the examiner:  

	a.  His behavior and thought content were normal;

	b.  He was fully alert and oriented;

	c.  His mood was level;

	d.  His thinking process was clear;

	e.  His memory was good;

	f.  He was mentally responsible;

	g.  He was able to distinguish right from wrong and adhere to the right;

	h.  He met medical retention requirements; and

	i.  He had the mental capacity to understand and participate in separation proceedings.

7.  The unit commander notified the applicant he was initiating action to separate him for unsuitability.  The discharge packet shows the unit commander cited “apathy” as his reason for taking the elimination action on the applicant.  

8.  On 9 April 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects.  Subsequent to this counseling, he elected to waive the following rights:

* consideration of his case by a board of officers
* personal appearance before a board of officers
* representation by counsel
* to make a statement in his own behalf

9.  On 25 April 1974, the separation authority approved the applicant's separation and directed he receive a GD.  He also waived further counseling and rehabilitation requirements.  On 16 May 1974, the applicant was discharged accordingly.

10.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance.  It provides for commanders to separate members under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 

11.  The same regulation defines an HD as 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to an HD because it was a miscarriage of justice has been carefully considered.  However, the evidence is not sufficient to support this claim.  

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  The applicant consulted with legal counsel and was provided the opportunity to have his case considered by a board of officers and/or to submit statements in his own behalf, both of which he waived.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Notwithstanding his RVN service, his misconduct clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  His overall record of service did not support the issue of an HD by the separation authority at the time, and does not support an upgrade of his discharge now.  As a result, absent any error or injustice in the discharge process, it would not be appropriate or serve the interest of justice to grant 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)                                         AR20090020138



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ABCMR Record of Proceedings (cont)                                         AR20090020138



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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