IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20110000863 


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 be upgraded to honorable.

2.  The applicant makes no statement.

3.  The applicant provides no additional documentation.

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.  On 10 February 1984, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 82C (Field Artillery Surveyor).

3.  On 12 July 1984, the applicant was assigned for duty as a survey computer recorder with the 6th Battalion, 33rd Field Artillery, located at Fort Sill, Oklahoma.

4.  The applicant was counseled on numerous occasions for:

* missing his bus
* missing morning formation
* not reporting for extra training
* for being disrespectful to his noncommissioned officers (NCO's)
* for refusing to obey orders from his NCO's
* for being belligerent

5.  The applicant accepted nonjudicial punishment (NJP):

	a.  on 9 October 1984, for failure to return to his place of duty; and

	b.  on 21 January 1985, for wrongful use of marijuana.

6.  A DA Form 3975 (Military Police Report) dated 11 February 1985, indicates that the applicant was apprehended for stealing a carton of cigarettes from the Post Exchange.

7.  On 11 March 1985, the applicant's company commander notified him that he was intending to take action to discharge him for misconduct under the provisions of Army Regulation 635-200, chapter 14.  The commander informed him that the least favorable characterization of service he would receive was a general discharge.

8.  On 12 March 1985, a mental status evaluation reported that the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  The applicant was mentally responsible and met medical fitness standards for retention.  He had the mental capacity to understand and participate in separation proceedings.

9.  On 13 March 1985, the applicant consulted with counsel concerning his rights. He elected not to submit a statement.  He understood that he could expect to encounter extreme prejudice in civilian life as a result of a general discharge.

10.  On 18 March 1985, the applicant’s commander recommended separation from the service for misconduct.  The commander cited the applicant's several counseling statements, his NJP for using marijuana, and his theft of cigarettes from the Post Exchange.  The commander further stated that the applicant had not been transferred for rehabilitation because he had resisted all attempts by his chain of command for improvement and it was believed any further attempt at rehabilitation would not produce a quality Soldier.

11.  On 20 March 1985, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under honorable conditions.  On 28 March 1985, the applicant was accordingly discharged.  The narrative reason for his discharge was "Misconduct - Commission of a serious offense.  He had completed 1 year, 1 month, and 
19 days of creditable active duty service.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include the commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  The misconduct is considered a commission of a serious military or civil offense when the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice (UCMJ).
  
14.  Under the UCMJ, the maximum punishment allowed for:

	a.   violation of Article 112a for wrongful use of marijuana is a punitive discharge and 2 years confinement; and

	b.  violation of Article 121 for larceny of nonmilitary property of a value of $500.00 or less is a punitive discharge and 6 months confinement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to honorable.  He offers no argument or documentary evidence to justify his request.

2.  The record shows the applicant accepted NJP for wrongful use of marijuana.  He was also apprehended for stealing.  These are both serious offenses for which the UCMJ authorizes a punitive discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110000863





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ABCMR Record of Proceedings (cont)                                         AR20110000863



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