BOARD DATE:	  19 December 2013

		DOCKET NUMBER:  AR20130007503 


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 discharge.

2.  The applicant states:

   a.  When he joined the Army he was extremely excited and proud of being a part of something positive.  Before joining the Army he was addicted to alcohol and drugs.  This started when he was 12 years of age.  He joined the Army to grow up, to do something positive in his life, and he wanted to serve his country.  He was motivated, disciplined, and dedicated to being the best Soldier.

   b.  He had one of the highest physical training scores during his basic training.  He served as a driver for the battalion commander.  He started drinking again and then the drugs came into his life and the military started falling apart.  He asked for help and his company commander saw that he was a mess.  He tried to get his act together long enough to get a medical discharge under honorable conditions.  His company commander offered to do this for him.  He asks for forgiveness for his past mistakes.  It took him a long time to become clean and it was 3 years on 8 July 2012.

3.  The applicant provides copies of a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States, page 2), a letter from the Army Review Boards Agency, and two character reference letters.


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, in pay grade E-1, on 2 March 1976.  He completed training and was awarded military occupational specialty 36K (tactical wire operations specialist).  

3.  He accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, on/for:

* 13 June 1977 – absenting himself from his unit from 24 to 26 May 1977
* 12 October 1977 - absenting himself from his unit on 6 October 1977 and violating a lawful general regulation
* 15 March 1978 – absenting himself from his unit from 6 to 22 February 1978
* 24 May 1978 – wrongfully possessing marijuana on 24 May 1978 and failing to go to his appointed place of duty on 25 May 1978
* 31 May 1978 – absenting himself from his place of duty, breaking restriction, and failing to obey a lawful order on 29 May 1978

4.  On 19 April 1978, he was convicted by a special court-martial of one specification each of the following:

* absenting himself from his unit from 21 to 23 March 1978
* failing to go to his appointed place of duty on 25 and 26 March 1978
* resisting lawful apprehension by armed forces police
* assaulting a Soldier in the execution of his military police duties by striking him in the shoulder with his fist
* breaking restriction on 25 and 26 March 1978
* wrongfully possessing some amount of marijuana
* wrongfully using marijuana
5.  He was sentenced to confinement at hard labor for 5 months and a forfeiture of pay for 4 months.  

6.  On 13 June 1978, the applicant’s company commander recommended the applicant be separated from the service for frequent incidents of a discreditable nature under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), paragraph 14-33.  He stated the applicant was sent to the Brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with improved attitude and motivation.  However, the applicant's actions since arrival precluded accomplishment of the objective as evidenced by the resume of behavior, attitude, and ability.  The applicant had demonstrated little desire for returning to duty.  In his opinion, the applicant possessed the mental and physical ability necessary to be an effective Soldier, but he should not be retained.  He advised the applicant of his rights.

7.  On 13 June 1978, the applicant’s battalion commander concurred with the recommendation for discharging the applicant.

8.  On 16 June 1978, the convening authority approved only so much of the sentence of the special court-martial as provided for confinement for 2 months and forfeiture of pay for 2 months and ordered it executed.

9.  On 1 August 1978, he was convicted by a summary court-martial of one specification of absenting himself from his unit from 15 June to 18 July 1978 and breaking restriction on 22 July 1978.  He was sentenced to 30 days confinement. The sentence was approved and ordered executed on the same day.

10.  On 28 August 1978, after consulting with counsel, the applicant acknowledged the contemplated separation action.  He also acknowledged he could receive a general or an honorable discharge and the results of the receipt of a general discharge.  He waived his rights and elected not to submit a statement in his own behalf.

11.  On 31 August 1978, the separation authority approved the applicant’s discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

12.  He was discharged accordingly in pay grade E-1 on 5 September 1978, under the provisions of Army Regulation 635-200, paragraph 14-33b(1).  He was credited with completing 2 years, 2 months, and 13 days of net active service and 111 days of time lost.

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

14.  The applicant provided copies of two character reference letters wherein the individuals stated their support for an upgrade of the applicant’s discharge and attested to the applicant’s successful completion of their program and remaining substance-abuse free since coming to them.

15.  Army Regulation 635-200, in effect at the time, established the policy and prescribed procedures for separating members for misconduct.  The regulation stated in:

   a.  Paragraph 14-33b - the established 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.

	b.  Paragraph 3-7a - 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.

   c.  Paragraph 3-7b - 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 he was convicted by a special court-martial for several military infractions of discipline including wrongfully possessing and using marijuana.  In June 1978, his company commander recommended the applicant be separated because of frequent incidents of a discreditable nature.  He stated that upon the applicant’s return from correctional training and treatment, the applicant’s misconduct resumed.  

2.  During the chapter 14 processing he was convicted by a summary court-martial of misconduct.  On 31 August 1968, the separation authority approved his discharge and he was discharged accordingly on 5 September 1978.

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain 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 a general or a fully honorable discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20130007503





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ABCMR Record of Proceedings (cont)                                         AR20130007503



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