BOARD DATE:	  28 April 2011

		DOCKET NUMBER:  AR20100025806 


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 that his discharge under other than honorable conditions be upgraded to fully honorable.

2.  The applicant states he was unjustly discharged for fraudulent entry that was untrue because he provided his recruiter all of the necessary paperwork that he obtained from law enforcement officials.  He also states he was unaware that he would not be eligible for benefits that he needs.  He also states he desires to 
reenter the military.

3.  The applicant provides:

* A copy of his enlistment contract
* A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A copy of his Passport
* Copies of five third party statements of support
* A document that shows his probation was terminated
* Copies of three test score sheets
* Copies of five certificates of achievement and training 

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 was born on 15 July 1959 and enlisted in the Regular Army in Philadelphia, Pennsylvania on 1 September 1981 for a period of 2 years.  He was trained in military occupational specialty 11C (Indirect Fire Infantryman). 

3.  The applicant's DD Form 1966/5, item 36f (Involvement with Police or Judicial Authorities), shows the applicant was instructed to include all incidents with law enforcement authorities even if the citation or charge was dropped or dismissed or he was found not guilty or if told by recruiting personnel or anyone else that the incident was not important enough to list.  The applicant answered “NO” to the question “Have you ever been involved in the use, purchase, possession or sale of marijuana” with his initial.

4.  On 13 December 1981, he was transferred to Garlstedt, Germany for assignment to a cavalry troop as an infantry indirect fire crewman.

5.  On 26 April 1982, nonjudicial punishment was imposed against him for wrongful possession of marijuana in the hashish form.

6.  On 11 August 1982, the applicant’s commander notified him that he was initiating action to discharge him under the provisions of chapter 14, Army Regulation 635-200, for misconduct – fraudulent entry based on concealment of civil offenses.

7.  On 18 August 1982, the applicant underwent a mental status evaluation and was deemed mentally responsible.  He informed the examining psychologist that he had been arrested four times prior to entering the Army.

8.  On 30 August 1982, after consulting with counsel, the applicant waived all of his rights and he elected not to submit a statement in his own behalf.

9.  The Department of Defense – Defense Investigative Service report used in the discharge proceedings indicates the applicant was charged with five separate charges of possession of marijuana and nine separate traffic violations prior to enlistment.  Some of the charges were still outstanding.
10.  The appropriate authority (a brigadier general) approved the recommendation for discharge and directed the issuance of an under other than honorable conditions discharge.

11.  Accordingly, on 4 October 1982, he was discharged under the provisions of chapter 14, Army Regulation 635-200, due to misconduct–fraudulent entry with an under other than honorable conditions discharge.  He had served 1 year,
1 month, and 4 days of total active service.

12.  There is no evidence in his official records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil or military authorities, fraudulent entry, and conviction by civil authorities.  A discharge under other than honorable conditions is normally considered appropriate.  

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 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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  His characterization of service appropriately characterizes his service given the circumstances of his case.
3.  The applicant's contentions and supporting documents have been considered and found to lack merit.  The documents the applicant provides are not sufficient to mitigate his actions.  He failed to disclose a civil conviction for marijuana at the time of enlistment (plus five charges of possession of marijuana and nine separate traffic violations) and he continued to use marijuana after he enlisted.  Accordingly, his contentions and supporting documents are not sufficiently mitigating to warrant relief when compared to the seriousness of his misconduct and his overall undistinguished record of service.  His service simply does not rise to the level of a discharge under honorable conditions or an honorable 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.




      _______ _ 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)                                         AR20100025806



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ABCMR Record of Proceedings (cont)                                         AR20100025806



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