IN THE CASE OF:	  

		BOARD DATE:	    26 April 2012

		DOCKET NUMBER:  AR20110023307 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  He states he did not receive enough counseling.

3.  He provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), discharge packet, and a copy of his Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim).

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 enlisted in the Regular Army on 6 December 1984 and was trained in and awarded military occupational specialty (MOS) 12B (Combat Engineer).  On 4 April 1985, he was assigned to the 15th Finance Company, 1st Cavalry Division, Fort Hood, TX.

3.  The applicant's disciplinary record includes extensive formal counseling by members of his chain of command between 16 May 1985 and 27 September 1985 for patterns of misconduct that includes being absent without leave (AWOL) and possession of marijuana.

4.  The record reveals a disciplinary history that includes his acceptance of 
non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions for the offenses indicated:

* 17 May 1985, for being AWOL during the period 15 May to 16 May 1985 and 

* 6 September 1985, for wrongful possession of marijuana.  

5.  On 11 June 1985, he tested positive for marijuana. 

6.  On 13 June 1985, he was issued an administrative Letter of Reprimand (LOR) for public intoxication on 24 May 1985.

7.  On 19 June 1985, he underwent a mental status evaluation.  The evaluation revealed an individual with normal behavior; he was fully alert and oriented; his mood was flat, his thinking process was clear, his thought content was normal, and he demonstrated good memory.  The applicant had the mental capacity to understand and participate in board proceedings.  His evaluation indicated that he was cleared for any administrative action deemed necessary by the command.

8.  On 30 October 1985, the unit commander notified the applicant that separation action was being initiated to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12d, by reason of misconduct - abuse of illegal drugs.  The commander cited the applicant's possession of marijuana, wrongful possession and use of marijuana, public intoxication, AWOL, Article 15 for positive urinalysis, and writing bad checks as the basis for the action.  He also informed the applicant he intended to recommend issuance of a UOTHC discharge.


9.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effect.  He completed an election of rights in which he elected to waive consideration of his case by a board of officers and representation by counsel.  He also elected not to submit statements in his own behalf.

10.  On 3 December 1985, the separation authority approved the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200, and directed he receive a UOTHC discharge.  On 6 December 1985, the applicant was discharged accordingly.

11.  The DD Form 214 issued to the applicant upon his discharge shows he held the rank of private/E-1 on the date of his discharge and he completed a total of 1 year of active military service with one day of lost time.

12.  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.

13.  He provided a copy his VA Form 21-4138.  He indicated that after training for a combat engineer they switched him to Finance Corps.  After making many requests verbal and written to return to the engineers, his commander took it personally and informed him the only way to get out of his unit was to get out of the Army.  On 16 May 1985, he asked for assistance.  His First Sergeant suggested discharging him for failure to adapt to military life, etc.  His commander began his chapter 14 only after his first Article 15 and based on all the other troubles.   He states that if he had been sent back to the engineers and received counseling, he would have remained in the Army.  He concluded that whatever his command's decision was he was still proud of the Army and would fight and die for his country.

14.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and being absent without leave.  

15.  Paragraph 14-3 of Army Regulation 635-200 contains guidance on characterization of service for members separated under chapter 14.  It states, in pertinent part, that a UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such is merited by the Soldier's overall record.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is properly delegated.  

16.  Paragraph 14-12c of the enlisted separations regulation provides for the separation of members for misconduct based on the commission of a serious offense which includes the abuse of illegal drugs.   

17.  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.

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's argues his discharge should be upgraded to an HD because he did not receive enough counseling.  His disciplinary record shows he received counseling twice by his command and accepted NJP under the provisions of Article 15 for being AWOL and possession of marijuana.  There is no evidence to show that any additional counseling was required.

2.  The evidence confirmed he was discharged for misconduct based on commission of a serious offense based on his misconduct which included possession of marijuana, wrongful possession of marijuana and use of marijuana, public intoxication, AWOL, Article 15 for positive urinalysis, and writing bad checks.

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

4.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not eligible for either an honorable or 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)                                         AR20110023307



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ABCMR Record of Proceedings (cont)                                         AR20110023307



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