IN THE CASE OF:	  

		BOARD DATE:  7 June 2012

		DOCKET NUMBER:  AR20110023778 


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 undesirable discharge to an honorable discharge.

2.  He states:

* current regulations allow for rehabilitation for possession of marijuana
* this was his first and last time
* he was young and stupid

3.  He provides a self-authored statement and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 29 June 1951.  He enlisted in the Regular Army on 2 August 1968 at the age of 17.  Upon completion of initial entry training, he was awarded military occupational specialty 15B (Sergeant Missile Crewman).  The highest rank/pay grade he attained while on active duty was private first class/
E-3.  However, at the time of discharge he held the rank/pay grade of private/E-1.

3.  He was assigned to Headquarters and Headquarters Battery, 3rd Battalion, 81st Artillery in Korea on 6 December 1968.  

4.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on three separate occasions for:

* failing to go to his appointed place of duty
* having in his possession 17 grams, more or less, of marijuana, and wrongfully attempting to sell marijuana
* failing to go at the time prescribed to his appointed place of duty
* failing to obey a lawful order issued by a captain 

5.  On 10 November 1969, he underwent a psychiatric examination.  It was determined that he was mentally able to distinguish right from wrong and to adhere to the right; he was mentally able to understand the nature of board proceedings and to testify in his own behalf; he met the medical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3; and there was no mental disease or defect.  The applicant was psychiatrically cleared for any administrative action deemed advisable by his chain of command.  

6.  On 11 November 1969, he was convicted by a summary court-martial of being absent without leave from 8 to 9 November 1969.  He was sentenced to confinement at hard labor for 30 days and a forfeiture of $50.00 pay.  

7.  On 1 December 1969, the unit commander notified the applicant of his intent to recommend that he be separated from the Army under the provisions of Army Regulation 635-212 Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.  The applicant was advised of his rights.  

8.  The applicant consulted with legal counsel, waived consideration and a personal appearance before a board of officers, and did not submit statements in his own behalf.  


9.  On 9 December 1969, the applicant's commander initially recommended the applicant for separation under the provisions of Army Regulation 635-212 due to unfitness, possession of marijuana, habits and traits of character manifested by repeated petty offenses.  However, the discharge action was returned due to an administrative error.

10.  On 18 March 1970, he underwent a second psychiatric evaluation.  The findings were cited the same as indicated in the 10 November 1969 psychiatric examination.  

11.  On 24 March 1970, the administrative action was determined to have been complied with and the discharge action was returned for processing.

12.  The appropriate separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 due to unfitness and directed the issuance of an Undesirable Discharge Certificate.

13.  On 21 June 1970, he was discharged under the provisions of Army Regulation 635-212, for unfitness, with an undesirable discharge.  He was credited with completion of 1 year, 9 months, and 25 days of active service and 24 days of lost time.

14.  He provided a self-authored statement in support of his claim.  He stated:

	a.  He was age 17, it was his first time away from home, and he was very stupid.

	b.  He was introduced to "pot" by some of his fellow Soldiers in Korea.

	c.  If he was experiencing a drug problem today he would be sent to rehabilitation.  There were no such programs available when he was in the service.

	d.  He has learned his lesson and he will remain drug free the rest of his life.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

16.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.

   a.  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.

   b.  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 discharge under the provisions of Army Regulation 635-212, by reason of unfitness was administratively correct and in conformance with applicable regulations in effect at the time.  

2.  The applicant contends he was experiencing a drug problem and there were no rehabilitation programs available when he was in the service.  However, the available evidence shows the applicant received three nonjudicial punishments and he was convicted by a summary court-martial.  The applicant was not only using marijuana, he received nonjudicial punishment for attempting to sell marijuana.  Therefore, rehabilitation would not be an option even today under those circumstances.

3.  In addition, his service record shows he underwent two psychiatric evaluations and it was determined he met medical retention standards, was mentally responsible, and he had no mental disease or defect.  As a result, he was psychiatrically cleared for administrative separation action.  


4.  Records show the applicant was age 18 years at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  

5.  The applicant's contention that he has learned his lesson and vows to remain drug free the rest of his life was noted.  However, his post-service conduct alone is not a basis for upgrading a discharge.

6.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant the issuance of an honorable discharge and characterized his service as undesirable.

7.  The evidence of record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting his request for an upgrade of his undesirable discharge to an honorable or 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)                                         AR20110023778



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110023778



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1