IN THE CASE OF:  

		BOARD DATE: 13 September 2012 

		DOCKET NUMBER:  AR20120004663 


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, that his discharge under other than honorable conditions (UOTHC) be upgraded.

2.  The applicant states:

	a.  He did not understand his rights at the time of his discharge.  He needed substance abuse treatment and he made a mistake by not asking for help.  He was sentenced to 3 months at hard labor, 3 months the U.S. Army Retraining Brigade (USARB), Fort Riley, KS, and a forfeiture of 2/3 of his pay.  He injured his left shoulder during supervised recreation, he gave up, and he wanted to get out of the Army.  He had behavior problems, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), and he requested a discharge.

	b.  During his tour in Germany he was involved in one drug incident.  Until that incident he had no discipline problems.  He was charged even though he had no drugs on his person.  He believes rehabilitation would have provided him an opportunity for life-long positive effects. 

	c.  He has carried this burden more than 30 years and he would appreciate relief so that he can be proud.   

3.  The applicant provides copies number 1 and 4 of his 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 enlisted in the Regular Army on 5 June 1980.  He completed training and was awarded military occupational specialty 15D (Lance Missile Crewman).

3.  His records show:

	a.  On 5 February 1981, he was found guilty by a special court-martial of violating Article 134 of the UCMJ by wrongfully possessing cocaine and marijuana.  He was sentenced to reduction to private E-1, a forfeiture of $334.00 pay for 6 months, and confinement at hard labor for 6 months.

	b.  On 7 April 1981, at the USARB, Fort Riley, KS, he accepted NJP for violating Article 134 of the UCMJ by possessing a pipe with marijuana residue, possessing 1.5 grams of marijuana, and violating Article 92 of the UCMJ by failing to obey a lawful order.

4.  On 8 April 1981, his immediate commander at the USARB recommended the applicant's discharge for misconduct due to his frequent incidents of a discreditable nature.  The recommendation relates that the applicant had one court-martial and one NJP punishment.  He had been sent to the USARB for the purpose of receiving correctional training and treatment as necessary to return him to duty as a well-trained Soldier with improved attitude and motivation.  However, the applicant's actions since arrival precluded accomplishment of that objective.  He demonstrated little desire for returning to duty.  He received approximately 24 counselings from 5 February to 1 April 1981 while in the USARB.  In the commander's opinion the applicant should not be retained in the service.  

5.  The applicant consulted with counsel concerning his rights.  He elected not to make a statement in his own behalf.  He indicated he understood that he might encounter substantial prejudice in civilian life if a less than honorable discharge was issued to him.

6.  On 20 April 1981, the intermediate commander concurred and the appropriate authority approved the recommendation for discharge and directed the issuance of a UOTHC discharge. 

7.  On 21 April 1981, the applicant was accordingly discharged under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 
14-33b(1).  He had completed 9 months and 11 days of creditable active service.

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

9.  Army Regulation 635-200, then in effect, prescribed procedures for separating members for misconduct.

	a.  Chapter 14 provided specific categories including frequent incidents of a discreditable nature with civil or military authorities.  Action was required to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  This regulation also provided that an honorable discharge was 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.  This regulation further provided that a general discharge was 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 discharge should be upgraded because he did not understand his rights at the time of discharge.  Additionally, he needed substance abuse treatment and he made a mistake by not asking for help.  If he would have been offered rehabilitation believes he would have been able to make behavior changes.   
2.  The available record shows that following a special court-martial conviction the applicant received NJP and approximately 24 counsellings while in the USARB.  Clearly, this record documents repeated and continual incidents of a discreditable nature.

3.  He met with counsel and indicated he understood the rights available to him.
The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized 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 above, the applicant's request should be denied.

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)                                         AR20120001340



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ABCMR Record of Proceedings (cont)                                         AR20120004663



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