IN THE CASE OF:	  

		BOARD DATE:	  29 August 2013

		DOCKET NUMBER:  AR20130002450 


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 that his general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident during a 57-month period of military service with no other adverse actions.  This single transgression should not blemish an otherwise exemplary short term of service.  He contends that his 100 percent service-connected, disfiguring disability of filariasis and an early regrettable separation is punishment enough.

3.  The applicant contends he had attended a concert with another service member.  They were in the presence of a crowd of people who were smoking marijuana.  He believes his commander at the time was prejudiced toward him because he was discharged for this one incident.  Because he was a sergeant with less than 5 years service he had no chance to appeal.  He felt intimated and coerced into signing the nonjudicial punishment (NJP).  He did not see or ever hear of what happened to the other service member, who just vanished after the incident.

4.  The applicant states he was a motivated Soldier from the start.  He received letters of commendation and appreciation in basic training.  He was awarded the Army Achievement Medal (AAM) at Fort Knox, KY.  He was apart of the "Military Police A.W.O.L. Apprehension Team" at Fort Knox.  He traveled as a member of an investigation team apprehending deserters.  While in the Republic of Korea he received a Certificate of Achievement and was runner-up for the Provost Marshal Trophy.  He graduated from the Non-Commissioned Officers Training School and was promoted to sergeant, pay grade E-5.  He not only was a squad leader, he was an assistant platoon sergeant, desk sergeant, traffic radar operator, and instructor.  At Fort Hamilton, NY he was the only New York City trained breathalyzer administrator.  He also had "SWAT" training, hostage negotiation training, defensive driving and riot training.  He instructed classes in advanced first aid.  He was respected by his peers as well as by his superiors.  His last commander had written a letter recommending his retention in the military service.  He also received a letter of recommendation for future employment from his immediate supervisor.

5.  The applicant provides copies of:

* Letter of Appreciation from his commander, dated 24 July 1980
* Letter of Commendation from his commander, dated 11 August 1980
* Certificate of Appreciation, dated 5 September 1980
* Certificate for award of the AAM, dated 7 December 1981
* Memorandum for Record, AAM, dated 7 December 1981
* Certificate of Achievement, dated 17 August 1982
* Letter of Congratulations from the Provost Marshal, dated 20 April 1983
* DA Form 1059 (Service School Academic Evaluation Report) for the Primary Leadership Development Course (PLDC), dated 29 July 1983
* Certificate, PLDC, dated 29 July 1983
* Certificate, Municipal Police Training Council, Breath Test Operator Program, dated 2 March 1984
* Certificate, Detective Bureau Training Program, Hostage Recovery Seminar, Police Department, City of New York, dated 29 March  1984
* Certificate of Competency in Kustom Traffic Radar Operation, Fort Hamilton, New York, dated 21 May 1984
* Certificate of Competency in Doppler Traffic Radar Instructor, Fort Hamilton, NY, dated 21 May 1984
* Letter of Recommendation for Retention, dated 8 December 1984
* Statement from First Sergeant, dated 28 January 1985
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 257A (General Discharge Certificate), dated 28 January 1985
* Letter of Recommendation, Training Noncommissioned Officer, dated       1 February 1985
* Letter, Department of Veterans Affairs, dated 24 December 2012
* Photocopies of photographs shown to have been taken of the applicant on 26 January 2013


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.  On 18 April 1980, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 95B (Military Police).

3.  On 2 October 1983, the applicant was promoted to sergeant, pay grade E-5.

4.  On 11 December 1984, the applicant accepted NJP for the wrongful use of marijuana.  

5.  On 18 December 1984, the applicant was notified by his commander that action was being taken to separate him under the provisions of Army Regulation 635-200, chapter 14 for misconduct.  This action was based on his positive urinalysis test for marijuana.  The notification advised him of his rights to consult with counsel, to present his case before a board of officers, and to submit statements in his own behalf.  He did not submit any statement.

6.  On 18 December 1984, the applicant's commander wrote a letter of recommendation wherein he strongly requested that the applicant not be separated for his misconduct.  The commander stated that the applicant's processing for separation was mandatory under the governing regulatory provisions.  However, the commander strongly felt that letting the applicant go for this one mistake would not be in the interest of the Army.  The commander felt that the applicant had gained from his counseling and this type of misconduct would not occur again.

7.  On 19 December 1984, the applicant consulted with counsel and requested counsel and that his case be heard by a board of officers.  He elected not to submit a statement on his own behalf.  His counsel advised him of his rights.
8.  On 7 January 1985, the battalion commander recommended approval of the company commander's recommendation to retain the applicant in the military service.  He further recommended not to waive the rehabilitation requirements.

9.  On 8 January 1985, the approving authority disapproved the recommendation that the applicant be retained in the service and disapproved the request to not waive the rehabilitation requirement.  The approving authority directed the applicant be issued a General, Under Honorable Conditions Discharge Certificate, and that he not be transferred to the Individual Ready Reserve.

10.  On 28 January 1985, the applicant was accordingly discharged.  He had completed a total of 4 years, 9 months, and 11 days of creditable active duty service.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include commission of a serious offense

	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.  

	c.  This regulation further provides that misconduct is considered a commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice (UCMJ).

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 112a for the wrongful use of marijuana is a punitive discharge and confinement for 5 years.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded to honorable because it was based on an isolated incident.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The applicant's record of good service is greatly diminished by his commission of a serious offense, in particular, with his having been a military policeman.  He, more so than most other Soldiers, should have known the devastating results his action could have.

5.  His argument implying that he did not use marijuana, but was only in a crowd of people who were, is not substantiated by any evidence of record.  Furthermore, he chose at the time to not even offer a statement of explanation.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130002450





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ABCMR Record of Proceedings (cont)                                         AR20130002450



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