IN THE CASE OF: 

		BOARD DATE:	    4 February 2014

		DOCKET NUMBER:  AR20130008707 


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 the entry in item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from "misconduct–pattern of misconduct" to "convenience of the Government."  

2.  He states he smoked marijuana while on a field mission.  This was the only time he smoked marijuana while he was in the service.  Another Soldier noticed he didn't look right and told him he was going to turn him in.  He (the applicant) turned himself in the next morning.  After he told his captain, the captain got mad and said if he wanted out of the Army, he would help.  He told the captain he didn't want out and that he had made a dumb mistake.  He asked for another chance.  The captain disagreed and discharged him based on a pattern of misconduct, even though there was never a pattern.  He realizes he made a mistake, but the captain could have gotten help and counseling for him instead of giving up so easily.  It was as if the captain was in a hurry to get him out of there and it was more convenient to let him go than shape him into the man he should be.  

3.  He states he has since grown up and found God.  He has learned about being obedient, disciplined, and becoming a leader; however, this process wouldn't have taken a lifetime if he had been fully trained in the Army.  

4.  He provides no additional evidence in support of his request.


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 30 August 1984, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 11B (Infantryman) and assigned to duty with a unit at Fort Irwin, CA.

3.  On 21 March 1985, the Fort Irwin Post Exchange sent him a second notice of a dishonored check in the amount of $100.00.  The notification indicates the reason the check was returned was that the account on which the check had been drawn was closed.  

4.  On 6 May 1985, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 11 April 1985.

5.  A Forces Command (FORSCOM) Form 139-R (Statement of Counseling), dated 12 July 1985, shows he was counseled regarding his "attitude and behavior while on rotation."  The officer providing the counseling stated he had been informed the applicant was using marijuana while in the field.  He asked the applicant if that was true, and the applicant admitted it was so. 

6.  DA Forms 4856-R (General Counseling Form) show he was counseled on:

* 18 August 1985 for missing formation
* 6 October 1985 for being out of uniform and failing to correct his uniform

7.  On 21 November 1985, he accepted NJP for being absent without leave (AWOL) from 3 to 5 November 1985.

8.  On 10 December 1985, he accepted NJP for acting with disrespect to a noncommissioned officer and being absent from his place of duty.
9.  On 17 December 1985, his company commander notified him he was being considered for separation for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 
14-12b.  His commander informed him the reason for the recommendation was an established pattern of misconduct prejudicial to the good order and discipline of the U.S. Army.  His commander listed the following as the basis for his recommendation:

* writing a check on a closed account
* NJP for failure to repair, AWOL, and disrespect to a commissioned (sic) officer
* counseling for attitude and behavior, failure to repair, and being out of uniform and failing to correct his deficiencies

His commander also advised him of his rights.  

10.  On 17 December 1985, the applicant consulted with counsel who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights.

11.  After consulting with counsel, the applicant waived consideration of his case by an administrative separation board, personal appearance before such a board, and counsel.  He elected not to submit statements in his own behalf.  He acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions.

12.  On 18 December 1985, the separation authority approved his separation under the provisions of Army Regulation 635-200, paragraph 14-12b and directed he be issued a General Discharge Certificate.  On 10 January 1986, he was discharged accordingly after completing 1 year, 4 months, and 10 days of net active service.  His DD Form 214 shows in:

* item 25 (Separation Authority) – "AR 635-200, CHAPTER 14-12B"
* item 28 – "MISCONDUCT–PATTERN OF MISCONDUCT"

13.  There is no indication the applicant applied to the ADRB to change of the reason for his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 (Personnel Separations) 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 include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the narrative reasons for separation to be entered in item 28 of DD Form 214.  The version in effect at the time of the applicant's discharge stated the narrative reason "misconduct–pattern of misconduct" was to be used for separations under the provisions of Army Regulation 635-200, paragraph 
14-12b.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request that the entry in item 28 of his DD Form 214 be changed from "misconduct–pattern of misconduct" to "convenience of the Government."

2.  The applicant contends that there was no pattern of misconduct, but his record shows otherwise.  His record includes documentation showing that in a span of approximately 16 months he:

* wrote a check on a closed account
* received NJP for failure to repair, AWOL and showing disrespect to an NCO
* was counseled for his attitude and behavior, failure to repair, and being out of uniform and failing to correct the deficiencies
* admitted he had used marijuana while in the field

The record leaves no doubt that there was a pattern of misconduct.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  The record fully supports the reason and authority for discharge shown on his DD Form 214.  Therefore, there is no basis for granting 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)                                         AR20130008707





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ABCMR Record of Proceedings (cont)                                         AR20130008707



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