IN THE CASE OF:	  

		BOARD DATE:	  31 May 2012

		DOCKET NUMBER:  AR20110022846 


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 (UOTHC) discharge to a general discharge.

2.  The applicant states, in effect, he was very young, age 19, and he did not know how a UOTHC discharge would affect his benefits, entitlements, and job opportunities 30 years later.  His charges did not warrant the type of discharge he received.  He is a veteran who served his country proudly.

3.  The applicant provides no additional evidence.

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 records show he was born on 23 November 1963 and enlisted in the Regular Army, at age 19, on 18 August 1982.  He completed the training requirements and he was awarded military occupational specialty 76W (Petroleum Supply Specialist).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  His record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on three occasions:

* 15 September 1983 - willfully and wrongfully damaging, by force, the property of another in the amount of $30.00
* 15 December 1983 - wrongfully using marijuana
* 3 February 1984 - disobeying orders

4.  His records contain a DA Form 5180-R (Urinalysis Custody and Report Record) which lists his name and social security number (SSN).  This form was accompanied by a memorandum, dated 4 March 1984, which included his SSN, and requested retention of his urine specimen for retesting and pending legal action.

5.  His record contains a DA Form 2496 (Disposition Form), dated 20 March 1984, which was utilized to inform his gaining unit that he was being transferred from "another Alcohol and Drug Abuse Prevention and Control (ADAPCP) to the ADAPCP at Fort Polk, LA."  The applicant was identified by name and SSN.

6.  His record contains a general counseling form, dated 22 March 1984, wherein his supervisor indicated the applicant was doing an outstanding job maintaining his vehicle and that the applicant should be promoted with his peers.

7.  His records contain a memorandum, dated 4 April 1984, which lists his SSN, and confirms his urine specimen tested positive for cannabis.  

8.  The applicant's records contain a Report of Result of Trial, issued by Headquarters, 7th Engineer Battalion (Combat), Fort Polk, LA, dated 25 April 1984.  This report shows on 25 April 1984, he was convicted by a summary court-martial of one specification of using marijuana between 9 and 22 February 1984.  The court sentenced him to a forfeiture of $397.00 pay for 1 month and
45 days of hard labor without confinement.

9.  Summary Court-Martial Order Number 25, dated 27 April 1984, shows the sentence was approved and executed on that same date.

10.  His record contains a Report of Mental Status Evaluation, dated 4 May 1984, wherein a medical official stated the applicant was psychiatrically cleared for administrative action as deemed appropriate.

11.  On 10 May 1984, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct, abuse of illegal drugs.  On the same date the applicant acknowledged receipt of the commander's intent to separate him for misconduct.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He waived consideration of his case by a separation board, waived personal appearance before a separation board, and indicated he would provide a statement in his own behalf.  However, the statement is not included with the separation packet.

12.  The applicant acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he was issued a less than fully honorable discharge.  He further acknowledged he understood that as a result of the issuance of a UOTHC discharge he could be ineligible for many or all benefits as a veteran under Federal and State laws.

13.  On 11 May 1984, the applicant's immediate commander recommended that further counseling and rehabilitation efforts be waived and initiated separation action against him in accordance with chapter 14, Army Regulation 635-200 for misconduct.  On 24 May 1984, the intermediate commander recommended approval of the separation action.

14.  On 7 June 1984, the separation authority waived further rehabilitative efforts and approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

15.  On 13 June 1984, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received a UOTHC discharge by reason of misconduct.  He completed 1 year, 9 months, and 26 days of creditable active service.  

16.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  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 minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, drug abuse, 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 UOTHC discharge 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.

18.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he was young at the time he served.  Records show he was age 19 at the time he entered the military.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military obligation.

2.  He twice tested positive for the use of marijuana.  He knowingly and wrongfully made the choice to use an illegal drug.  Testing positive for illegal drug use is a punishable offense.  In addition to illegal drug use his records contain offenses of willful destruction of personal property and disobeying orders.

3.  Based on his record of misconduct his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general 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)                                         AR20110022846



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ABCMR Record of Proceedings (cont)                                         AR20110022846



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