BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120009246 


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 upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  He states:

	a.  he felt his discharge was more severe than the misconduct he committed in the service warranted;

	b.  he realized he had some conduct problems, but a lot of this was due to his age and a lack of supervision and guidance he was given in the U.S. Army;

	c.  since it was a peacetime period, he feels this had some influence on what occurred;

	d.  he received some of the highest scores in school for training in military occupational specialty (MOS) 15D (Lance Missile Crewmember).  He found out after graduation this MOS was being phased out, so he was placed in an office job.

	e.  he was placed in the S-3 for almost his entire time in service, but this was not what he wanted to do.  This created bad feelings for him towards the Army and his superiors.  After his time in the S-3, he was placed in the Motor Pool for his remaining 10 months.


	f.  he realized there were circumstances that led to his pattern of misconduct, but he is taking full responsibility for his actions.  He would just like a review of his records to see if the type of discharge he received was appropriate with his pattern of misconduct.

3.  He provides 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 was born on 16 October 1962 and he enlisted in the Regular Army on 29 June 1982 at the age of 19 years, 8 months, and 14 days.  At the completion of one station unit training at Fort Sill, OK, he was awarded MOS 15D.

3.  On 12 November 1982, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully possessing 4.06 grams, more or less, of marijuana on 8 November 1982.

4.  His service record indicates he was confined by civil authorities from 
12 to 27 October 1983.

5.  On 21 March 1984, in the District Court of Comanche County, State of Oklahoma, he pled guilty of the crime of unlawful distribution of marijuana.  He was sentenced to an indeterminate period of time under the direction and control of the Department of Corrections of the State of Oklahoma.

6.  On various dates between 2 December 1982 and 11 May 1984, he received adverse counseling statements for writing worthless checks, having an unclean 


room, being in debt due to writing worthless checks, being late for formation, not having proper uniforms, and being absent from his place of duty.

7.  On 1 May 1984, the company commander notified the applicant of the proposed recommendation to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b for a pattern of misconduct.  He was advised of his rights.

8.  He acknowledged receipt of the separation action, requested consideration of his case by a board of officers, requested a personal appearance before the board, consulted with legal counsel, and submitted a statement in his own behalf.  However, his statement is not available for review.

9.  On 5 July 1984, a board of officers convened and recommended the applicant be discharged from the service by reason of misconduct with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 3 August 1984, the appropriate authority approved the findings and recommendation of the board and directed the applicant be discharged from the service with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

11.  On 13 August 1984, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct – pattern of misconduct.  He completed 2 years and 29 days creditable active duty service with 15 days of time lost.

12.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.


	b.  Paragraph 3-7a states 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.

	c.  Paragraph 3-7b states 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 service record shows he received an Article 15 for wrongfully possessing marijuana, he was confined by civil authorities for distributing marijuana, and he received adverse counseling statements for various reasons.  Considering the seriousness of his offenses, it appears his service was appropriately characterized.

2.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of a pattern of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  His service record shows he was over 20 years of age at the time of his first offense.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  The evidence of record does not support his contention that he had a lack of supervision and guidance in the Army.  

5.  Although he contends his MOS 15D was phased out and he was placed in an office job, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct which led to his discharge.  

6.  An under other than honorable conditions discharge is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable or a general discharge.


7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20120009246



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ABCMR Record of Proceedings (cont)                                         AR20120009246



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