IN THE CASE OF:	  

		BOARD DATE:	    1 November 2011

		DOCKET NUMBER:  AR20110005249 


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, an upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states:

   a.  he was young and immature, and running with the wrong crowd; and 
   
   b.  he is filing for Department of Veterans Affairs (VA) benefits because his health is failing.

3.  The applicant provides:

* Four character references
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 military record shows he enlisted in the Regular Army (RA) on 11 June 1980.  He was trained in and served in military occupational specialty (MOS) 62E (Heavy Construction Equipment Operator).

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to private first class (PFC/E-3) on 1 May 1981, and this was the highest rank he attained while serving on active duty.  It also shows he was reduced to private (PV1)/E-1 on 5 August 1981, and this was his final rank held.

4.  The applicant’s record contains a document titled "State Warrant - With Waiver, State of Tennessee, Montgomery County.  It shows he was charged with the offense of "possession of a controlled substance" on or about 3 May 1981.

5.  On 8 September 1981, the applicant underwent a mental status evaluation that showed his behavior and thought content were normal, that he was fully alert and oriented, that he had an unremarkable mood, that his thinking process was clear, and that his memory was good.  The examiner also determined the applicant was mentally responsible, met retention requirements, and had the mental capacity to understand and participate in separation proceedings.

6.  On an unknown date, the unit commander recommended the applicant be discharged from the service under the provisions Army Regulation 635-200 (Personnel Separations) due to conviction by civil court.  He cited the following as the basis for separation action:

	a.  the applicant was not a valuable asset to the unit

   b.  following the applicant's conviction, he was involved in another off-post  arrest for possession of marijuana with intent to resell;
   
   c.  the applicant lacks the desire, initiative, and motivation to improve his behavior; and 
   
   d.  the unit and Army would be best served by the applicant's immediate discharge.
   

7.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects.  The applicant completed his election of rights indicating his options to:

   a.  waive consideration of his case by a board of officers;
   
   b.  waive personal appearance before a board of officers;
   
   c.  waive consulting counsel and representation by counsel; and
   
	d.  not to make a statement in his own behalf.

8.  On 7 October 1981, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, with issuance of a UOTHC discharge.  On 15 October 1981, the applicant was discharged accordingly.

9.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of “Misconduct-Conviction by Civil Court" with a UOTHC discharge.  He completed 1 year, 4 months, and 5 days of creditable active service.

10.  The applicant provides four character reference statements from individuals who indicate the applicant:

* is a veteran filing claims for service-connected disabilities
* lost his wife due to illness and has gone through serious health issues of his own
* is a valuable asset to his family and community
* is a highly-motivated individual with a get-it-done attitude
* is very responsible and caring towards veterans needs
* is a compassionate single parent who loves his family and friends

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.  

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

	a.  Army Regulation 635-200 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 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.  An honorable or general discharge may be awarded by the separation authority if warranted by the member's overall record of service; however, a UOTHC discharge is normally considered appropriate for members separted under these provisions.

	b.  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.

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UOTHC should be upgraded.

2.  The evidence of record confirms that the applicant was convicted by civil court for possession of a controlled substance.  Subsequent to his civil conviction, he was involved in another off-post arrest for possession of marijuana with the intent to resell.  The commander stated he lacked the desire, initiative, and motivation to improve his behavior.

3.  The evidence of record also confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  Additionally, corrections or changes are not made to a record for the purpose of making an individual eligible for benefits offered by another agency.

5.  Based on this record of misconduct, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20110005249





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ABCMR Record of Proceedings (cont)                                         AR20110005249



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