BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120008048 


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.

2.  The applicant states:

   a.  His civilian conviction was based on a babysitter's statement that he inappropriately touched her then 10 year old daughter who is now 32 years of age.  There was no repeat, no inappropriate touching, and the civilian court accepted her statement and placed him in jail.  He was offered a deal, after being incarcerated for almost 102 days, to pled "No Contest."  With this plea he would be released from jail and separated from the Army.  He took the deal after being advised he would be given a general discharge.
   
   b.  He was good Soldier during his entire time in the Army.  The Army failed him, he did not fail the Army.  He was proud of his service up to that point.  Had the Army offered him any legal assistance he might have had a different outcome.
   
   c.  During his service, he and his wife raised five children, one whom passed away at the age of 21 years old.  Two of the remaining four are presently serving in the Army and two graduated from college and are leading happy and fruitful lives.  He currently received health care services from the Department of Veterans Affairs based on his prior period of honorable service.  Any other service is negated by the UOTHC discharge.  He had submitted a disability claim for service-connected disability.
3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 23 May 1990.

 He 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 military record shows he enlisted in the Regular Army, in pay grade E-1, on 30 October 1979, for 3 years.  He completed training and was awarded military occupational specialty 94B (Food Service Specialist).  He was advanced to pay grade E-2 on 30 April 1980.
3.  On 8 May 1980, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for the following:

* leaving from his appointed place of duty on 2 May 1980
* wrongfully having in his possession some amount of marijuana on or about 6 May 1980

4.  On 12 December 1980, he was convicted by a summary court-martial of one specification of wrongfully having in his possession some amount of marijuana on or about 3 November 1980.  His sentence consisted of a reduction to pay grade E-1 and a forfeiture of $330.00 pay for one month.  

5.  On 17 December 1980, the sentenced was approved and ordered executed.

6.  On 5 January 1981, the applicant’s company commander notified the applicant that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 14, for misconduct.  The company commander stated that the applicant had been found in possession of marijuana on two separate occasions.  He destroyed government property and caused a fight in the dining facility.  The applicant lacked military discipline and was unable to conform to the rules and regulations of the Army.  He continuously disrupted his work area and the billet area with his actions.  Despite counseling by his supervisors his conduct had not improved.

7.  On 7 January 1981, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action.  He acknowledged he could receive an under other than honorable conditions discharge and the results of the issuance of such a discharge.  He waived his rights and elected to have his case heard by a board of officers.

8.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 27 January 1981, shows the applicant's behavior was found to be normal, his level of alertness was fully alert, and his level of orientation was full oriented.  His mood was found to be unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  The examining physician, a psychiatrist, stated the applicant showed no signs of any significant psychopathology which would warrant medical action and cleared the applicant for any administrative action deemed appropriate by the command.

9.  On 13 February 1981, a board of officers approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 14.

10.  On 4 March 1981, the separation authority directed the applicant’s discharge from the Army and the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

11.  His DD Form 214 shows he was discharged on 6 March 1981 under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct, frequent incidents of a discreditable nature with civil or military authorities with an under other than honorable conditions character of service.  He was credited with completing 1 year, 4 months, and 5 days of active service with lost time from 
5 to 6 February 1981.

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

13.  Army Regulation 635-200, chapter 14, paragraph 14-33b(1), in effect at the time, established the policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  An under other than honorable conditions discharge was normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was punished under Article 15 and convicted by a summary court-martial of the wrongful possession of marijuana.  On 5 January 1981, the applicant’s company commander initiated action to separate him for misconduct.  The company commander stated the applicant destroyed government property, caused a fight in the dining facility, lacked military discipline, and was unable to conform to the rules and regulations of the Army.  

2.  He requested his case be heard by a board of officers.  On 13 February 1981, a board of officers approved his separation under the provisions of Army Regulation 635-200, chapter 14.  The separation authority directed the applicant’s discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  He was discharged accordingly on 6 March 1981.

3.  He has not shown his discharge was unjust or in error.  He provided no evidence or argument to show his discharge should be upgraded and his military record contains no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting an honorable or a general discharge.

4.  It appears his administrative separation was accomplished in compliance with applicable regulations in effect at the time with no procedural errors which would jeopardize his rights.  In the absence of evidence to the contrary, government regularity in the discharge process is presumed.

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)                                         AR20120008048





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ABCMR Record of Proceedings (cont)                                         AR20120008048



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