IN THE CASE OF:	  

		BOARD DATE:	  18 March 2014

		DOCKET NUMBER:  AR20130011871 


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 that his chain of command illegally and fraudulently forced him to resign from his military term of enlistment and separate from the Army with an under other than honorable conditions discharge.  He contends that his evidence will show:

* he was not a known drug dealer and his chain of command mistook him for another Soldier
* he was never reduced in rank on 14 November 1979
* information provided by the Department of Veterans Affairs (VA) Regional Office regarding an Article 15 he received on 17 December 1980 is inaccurate
* he did not receive a mental health evaluation as required
* there is no record of him having been found in the wrongful possession of 43 grams of marijuana or any other drugs

3.  The applicant provides:

* a seven-page brief
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2-1 (Personnel Qualification Record)
* Report of Medical History, dated 21 July 1978
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) with allied documents, dated 17 December 1980
* DD Form 458 (Charge Sheet), dated 14 April 1981
* DA Form 4126-R (Bar to Reenlistment Certificate), dated 11 May 1981
* DA Form 2496 (Disposition Form), dated 15 June 1981
* Memorandum, dated 15 June 1981
* Fort Bragg (FB) Form 2408 (Checklist for Screening Records), dated 
18 June 1981
* VA Regional Office Administrative Decision, dated February 1982
* FB Form 1029 (Nonjudicial Punishment Acknowledgment of Rights and Waiver)

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 Board has no jurisdiction over the VA records or the records of their associated Regional Offices; therefore, any errors made by that organization cannot be addressed by this Board.  However, the Board will consider all available evidence in the applicant's military records to include the 
Article 15 dated 17 December 1980 referenced by the VA Regional Office.

3.  On 9 January 1979, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).  He was subsequently assigned to a unit at Fort Bragg, NC.

4.  The specific facts and circumstances of his discharge proceedings are not available for review; however, his record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ:

	a.  On 14 November 1979 for:

		(1)  the wrongful appropriation of one pair of sunglasses from the Main Post Exchange on 23 September 1979;

		(2)  failing to properly secure his M16A1 rifle on 8 November 1979; and

		(3) the wrongful possession of some amount more or less, of marijuana on 
23 September 1979.  His punishment included reduction from private (PV2)/E-2 to private (PV1)/E-1 which was suspended for a period of 90 days.  There is no indication that he was reduced to PV1/E-1 within that 90-day suspension period.

	b.  On 17 December 1980 for willfully disobeying a lawful order to be prepared for inspection and be in the correct uniform on 17 December 1980.  His punishment included reduction from private first class (PFC)/E-3 to PV2/E-2.

5.  Orders Number 122-106, issued by Headquarters, 82nd Airborne Division, Fort Bragg, NC, dated 25 June 1981, reduced the applicant from PV2/E-2 to PV1/E-1 for misconduct, effective 16 June 1981.

6.  On 9 July 1981, he was administratively discharged under other than honorable conditions for conduct punishable by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

7.  His DD Form 214 shows he completed 2 years, 6 months, and 1 day of creditable active service.

8.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  The applicant provides the following arguments with attachments:

	a.  He had no history of drug use or arrests prior to his entry into the Army.  He submits his Report of Medical History, completed on 21 July 1978, in which he indicated that he was in good health and was not taking any medication.

	b.  He never received an Article 15 for possession of marijuana or larceny of nongovernment property on 14 November 1979.  As evidence he provides Section IV (Personal and Family Data), item 22 (Physical Status) of his DA Form 2-1.  This form shows the applicant completed a physical exam on 11 April 1979; however, he indicates in his handwritten note that he completed a physical on the same date, 14 November 1979, that he supposedly received the Article 15, UCMJ action.

	c.  He was never reduced in rank during the time period of the alleged Article 15, dated 14 November 1979.  He submits Item 18 (Appointments and 
Reductions) of his DA Form 2-1 which shows his date of rank and pay grade as follows:

* 9 January 1979 - PV1
* 9 July 1979 - PV2
* 1 May 1980 - PFC
* 17 December 1980 - PV2
* 16 June 1981 - PV1

	d.  He was not provided the opportunity to verify his records and the National Personnel Records Center has no U.S. Army Criminal Investigation Command (CID) record that shows he was found in the possession of .43 grams of marijuana or any drugs on 4 December 1980.  His Charge Sheet lists a CID report number but no documentation is attached.  Further, his FB Form 1029 incorrectly shows that he consulted with counsel on 17 December 1980 which is the same day that he received the Article 15 for not being prepared for his room inspection.  He contends that he would not need to consult with legal counsel because he was not being court-martialed.

	e.  He states there is missing evidence.  Specifically, documentation showing he was on a special duty assignment with his sergeant major troubleshooting and repairing telephones and telephone lines for one year, during the date in question, 14 November 1979. 

	f.  He contends there was no history of corrective action by his chain of command, no counseling statements, and no record of a urinalysis or drug treatment.  He argues that his discharge was in error because it was based on a case of mistaken identity.  He submits:

		(1)  A memorandum, SUBJECT:  Request for Discharge for the Good of the Service, dated 15 June 1981, issued by the Commander, 2nd Battalion “54th” Infantry, Fort Bragg, NC.  This document lists the applicant's name and social security number above the subject line; however, paragraph 3 reads:  "My reasons for the recommendation in paragraph 1 are:  PV2 An----- is a known drug user and is detrimental to the mission accomplishment of this unit."  His chain of command confused him with PV2 An-----.

		(2)  An FB Form 2408, dated 18 June 1981, which shows in item 2 (Race) the entry "Cau., male."  The applicant is African American.

	g.  There were factual errors involved in the processing of his discharge.  Item 6 (Disciplinary action under Article 15 of the aforementioned FB Form 2408 incorrectly shows that he received an Article 15 for insubordination on 
17 December 1980.  He contends that he received this Article 15 for disobeying an order to prepare for room inspection and it had nothing to do with insubordination.  He believes this error alone is sufficient for "reasonable doubt."

	h.  He contends that there is no proof that it was actually him who was being charged with possession of drugs or any documentation to support the convictions listed on his Bar to Reenlistment, dated 11 May 1981.  This document shows in:

* Item 9 (Record of Court-Martial Convictions) the entry- "Currently under SPCM-BCD charges for wrongful possession, transfer, and sell [sale] of marihuana [sic]”

* Item 10 (Record of NJP) the entry:

* 14 November 1979, possession of marijuana, larceny non-government property
* 17 December 1980, disrespect

	i.  He did not receive a mental status evaluation as cited in paragraph 3 of his DA Form 2496, issued by the Chief, Criminal Law, dated 15 June 1981.

	j.  In his summary he contends that he was falsely accused with false and misleading evidence in a poorly investigated and botched case of mistaken identity and the legal officer grossly erred and coerced him into terminating his enlistment.  The records do not support the findings of misconduct for the allegations arbitrarily placed in his records.

10.  There is no evidence showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  The applicant's service medical records were not available for review.

12.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, states in paragraph 8-11 that when the general court-martial authority determines that a Soldier is to be discharged from the service under other than honorable conditions, he will be reduced to the lowest enlisted grade. Board action is not required for this reduction.  The commander having general court-martial jurisdiction will, when directing a discharge under other than honorable conditions, or when directed by higher authority, direct the Soldier to be reduced to private.

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

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  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.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

15.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for an upgrade of his discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  Evidence provided by the applicant shows that he was charged with the wrongful possession, transfer, and sell of marijuana, an offense for which he could have been tried by court-martial and punished under the UCMJ with a bad conduct discharge.  

3.  He argues:

	a.  He never received an Article 15 for possession of marijuana; however, his military records show that on 14 November 1979 he accepted NJP for the wrongful possession of some amount more or less of marijuana on or about 
23 September 1979.  Further, he provides a Bar to Reenlistment which clearly shows he was pending a special court-martial for the wrongful possession, transfer, and sale of marijuana.  

	b.  The Article 15, dated 17 December 1980, incorrectly listed the reason for punishment as "insubordination" on his FB Form 2408, but he received the Article 15 for failing to prepare for inspection.  Failing to prepare for inspection is considered insubordination; therefore, this is an administrative error at best and does not change the fact that he received an Article 15 on 17 December 1980 for a violation of the UCMJ.

	c. He did not receive a mental health examination.  His service medical records are not available for review.  His discharge packet is not available for review.  Therefore, lacking evidence to the contrary, the Board must presume regularity in that he either received an evaluation or elected not have an evaluation.

	d.  He was never reduced during the period of the Article 15 dated 
14 November 1979.  Evidence shows that his reduction from PFC to PV2 was suspended for 90 days.  It must be presumed that he completed the 90-day suspension period without any additional disciplinary issues; therefore, the reduction was not processed.  However, official orders show the applicant was subsequently reduced from PV2 to PV1 on 16 June 1981 for misconduct.

	e.  He was mistaken for another Soldier named An------.  There is no evidence to substantiate this was a case of mistaken identity.  With the exception of minor administrative errors in which his race and name are incorrectly recorded, the preponderance of the evidence shows the applicant was charged with an offense punishable by court-martial and that he voluntarily elected discharge in lieu of trial by court-martial.

4.  Based on his misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is insufficient documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service.  Based on the available evidence it is presumed that he was properly and equitably discharged in accordance with the regulations in effect at the time.  

5.  The applicant raises many issues concerning the “illegality and fraudulent forcing of him to separate” more than 30 years after the fact.  An arbitrary ruling in his favor, without knowing what his discharge proceedings would have shown and without the possibility of contacting any of the involved officials, would cause prejudice to the Government.  Since it is now 30 years after the fact, the doctrine of laches is invoked in his case.

6.  Therefore, there is no basis upon which to upgrade 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)                                         AR20130011871



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ABCMR Record of Proceedings (cont)                                         AR20130011871



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