IN THE CASE OF:	  

		BOARD DATE:	  16 May 2013

		DOCKET NUMBER:  AR20120019752 


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, an upgrade of his discharge under other than honorable conditions to an honorable or general under honorable conditions discharge. 

2.  The applicant states he shared a room with other Soldiers, but he was charged with marijuana possession and was the only one who received punishment.  He further states he was not guilty and has never used or sold drugs.  He was able to secure a good job, but feels his discharge and the circumstances surrounding were unjust.   

3.  The applicant provides a copy 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 17 July 1979.  He held military occupational specialty 76C (Equipment Records and Parts Specialist).  The highest rank/grade he attained while serving on active duty was specialist   four/E-4.  However, he held the rank/grade of private/E-1 at the time of his discharge.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 3 September 1980, for twice disobeying a lawful order
* 22 July 1982, for wrongfully possessing marijuana

4.  On 26 August 1982, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for misconduct.  The reason for his recommendation was the applicant's record of drug-related incidents including his recent civil arrest for felony possession of marijuana.

5.  On 16 September 1982, he once again accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully possessing marijuana.

6.  On 21 September 1982, the applicant acknowledged receipt of the commander's intent to separate him for misconduct.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He requested consideration of his case by a board of officers, a personal appearance before the board, and he elected not to submit a statement on his own behalf.  He requested representation by military counsel.

7.  The applicant indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He further understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws.

8.  On 21 and 22 September 1982, his intermediate and senior commanders reviewed the recommended separation action and recommended approval stating the applicant had established himself as a repeat drug user as evidenced by two field grade Article 15s for possession of marijuana.

9.  On 14 October 1982, the convening authority ordered a board of officers convene to determine whether the applicant should be eliminated from service for misconduct.

10.  On 4 November 1982, the applicant appeared in person before a board of officers who considered his testimony and all of the evidence presented in his case in order to determine whether he should be separated from service for unsuitability and misconduct under the provisions of Army Regulation 635-200.  As a result, the board determined the applicant should not receive a rehabilitative transfer and recommended he be discharged from the service because of misconduct with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

11.  On 24 November 1982, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed issuance of an Other Than Honorable Conditions Discharge Certificate.

12.  He was discharged on 6 December 1982.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct for frequent involvement in incidents of a discreditable nature with civil and/or military authorities, with service characterized as under other than honorable conditions.  This form further shows he completed a total of 3 years, 4 months, and 20 days of creditable active military service and he had no lost time.

13.  On 6 July 1987, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories at the time included frequent incidents of a discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged for acts or patterns of misconduct.  

15.  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.

16.  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 contention that his discharge under other than honorable conditions should be upgraded to an honorable or general under honorable conditions discharge was carefully considered and found to lack merit.

2.  His record of service shows a history of misconduct that included two field grade Article 15s for possession of marijuana and a civil arrest for felony possession of marijuana.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His repeated misconduct diminished the quality of his service.

4.  His record of service was not satisfactory and is insufficiently meritorious to warrant an honorable or a general discharge.  Therefore, he is not entitled to the 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)                                         AR20120019752



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120019752



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1