IN THE CASE OF:	  

		BOARD DATE:	  26 September 2013

		DOCKET NUMBER:  AR20130003135 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.

2.  He states he was wrongfully convicted in civilian court.

3.  He provides self-authored statement and medical documents.

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 August 1980.  He served in Greece from 8 January 1981 to 3 July 1982.  

3.  He provided several medical documents which indicate he was admitted to a medical facility on 21 March 1982 after a motorcycle accident.  He was diagnosed with a non-displaced fracture of the right tibia, laceration of the right forehead, laceration of the right pre-tibial, and multiple contusions and abrasions.  

4.  On 2 November 1982, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully possessing some amount of marijuana.

5.  His service record includes three DA Forms 4187 (Personnel Action), dated 27 January 1983, 8 February 1983, and 24 March 1983, which indicate:

* on 24 January 1983, he was apprehended and held at Liberty County Jail, Hinesville, GA for selling a controlled substance 
* on 4 February 1983, he was tried by the Liberty County Court and fined $1,000.00 and given 5 years of probation

6.  His discharge packet is not available.  However, his DD Form 214 shows he was discharged on 13 April 1983 under the provisions of Army Regulation
635-200 (Personnel Separations–Enlisted Personnel), chapter 14, section II due to a civilian conviction.  He completed 2 years, 7 months, and 28 days of active military service with 10 days of lost time.

7.  He provided a self-authored statement in support of his claim and he described the incident involving his civil conviction.  He was off base at a bar shooting pool with some friends.  A guy at the bar offered him a ride home and asked him where he could purchase some marijuana.  He told the guy it was sold a couple blocks away from the bar.  The guy purchased the marijuana and then he dropped him off at the base.  In January 1983, the sheriff from the town came to the base to arrest him for selling marijuana.  He was placed in a civilian jail for about 10 days and he was given a public defender.  The public defender advised him to plead guilty to the offense.  He paid the fine and was placed on probation for 5 years.  He has never tested positive for drugs.  He had a Secret clearance so he was tested every 3 months.  He wants his discharge upgraded to "general" because he was badly injured in Greece as a result of a motorcycle accident Since that time his injuries have gotten worse.  The Department of Veterans Affairs (VA) will not treat him with his type of discharge.  This incident happened in March 1982 and he has not been in trouble up to this point.  He was advanced to pay grade E-4 and reduced to an E-1.

8.  His service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.
9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  That regulation provides for the elimination of enlisted personnel for misconduct when they are initially convicted by civil authorities, or action is taken against them which is tantamount to a finding of guilty, if a punitive discharge would be authorized for the same or a closely-related offense under the Manual for Courts-Martial, or the sentence by civil authorities includes confinement of 6 months or more, without regard to suspension or probation.  A UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.

10.  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 he was wrongfully convicted in civilian court is acknowledged.  However, his service is void of evidence to support his claim.  

2.  In the absence of evidence to the contrary, it is presumed that the applicant's administrative discharge proceedings were conducted in accordance with law and regulations applicable at the time.

3.  His service record shows he received an Article 15 for wrongfully possessing some amount of marijuana.

4.  A UOTHC discharge is normally appropriate for a Soldier discharged under Army Regulation 635-200, chapter 14 for misconduct.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation for a general discharge.

5.  After review of the evidence of this case, it is determined that the applicant has not presented sufficient evidence which warrants upgrading his UOTHC discharge to a general discharge.








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)                                         AR20130003135



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ABCMR Record of Proceedings (cont)                                         AR20130003135



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