IN THE CASE OF:	  

		BOARD DATE:	  31 July 2014

		DOCKET NUMBER:  AR20130018041 


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 issued on 27 September 1976.

2.  The applicant states, in effect, his discharge is in error based on the dates of his alleged misconduct.

3.  The applicant does not provide any additional evidence.

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 16 August 1974.

3.  On 10 September 1974, he accepted punishment under the provisions of Article 15, Uniform Code of Military Justice, for disobeying an order on or about 8 September 1974.

4.  On 6 December 1974, the applicant was advised he was suspected of rape.  He provided a sworn statement regarding the incident.

5.  On 19 December 1974, he accepted punishment under the provisions of Article 15 for disobeying an order on or about 6 and 7 December 1974.

6.  On 7 February 1975, the investigating officer for the suspected rape case provided a sworn statement that shows, in part:

* on 20 December 1974, the applicant was reassigned to Fort Ord, CA
* as of 5 February 1975, no action had been taken against the applicant
* a representative of the Fort Benjamin Harrison staff judge advocate's office advised that, in his opinion, the offense of rape should be unfounded

The final outcome of the investigation is not available.

7.  On 4 August 1975, he accepted nonjudicial punishment under the provisions of Article 15 for being absent without leave (AWOL) from on or about 24 July 1975 until on or about 28 July 1975.

8.  A DA Form 2495 (Disposition Form), dated 4 December 1975, shows, in part, the applicant was: 

* AWOL on 3 January 1975
* charged with reckless driving on 28 October 1975
* named as the subject in a rape case at Fort Benjamin Harrison in December 1974 and no action was taken because he was reassigned and the case, at the time, was being reviewed for legal sufficiency

9.  On 7 January 1976, the applicant was notified of the intent to deny him a security clearance.  On 10 February 1976, he was notified he was denied a security clearance.

10.  On 2 April 1976, the applicant underwent a mental status evaluation.  His report shows he had no significant mental illness and he had the mental capacity to understand and participate in board proceedings.

11.  On 9 April 1976, he accepted punishment under the provisions of Article 15 for failure to go at the prescribed time on or about 19 March 1976 and on or about 30 March 1976.

12.  On 26 April 1976, the applicant was advised of his rights and advised he was a suspect for wrongful possession of a heroin, a controlled substance, and narcotics paraphernalia.

13.  On 29 April 1976, he accepted punishment under the provisions of Article 15 for failure to go at the prescribed time on or about 27 April 1976.

14.  On 4 May 1976, a Bar to Enlistment/Reenlistment Certificate was initiated due to the applicant's misconduct.  On 17 May 1976, the Bar to Enlistment/ Reenlistment was approved.

15.  On 5 May 1976, the applicant was advised of his rights and advised he was a suspect for wrongful possession of suspected heroin and communicating a threat.

16.  DA Forms 2800 (Criminal Report of Investigation) show the applicant:

* threatened the life of another Soldier after he provided the Criminal Investigation Division (CID) information that led to the applicant's  apprehension for a narcotics offense
* at an unknown time, stole stereo and headphone equipment and a radio from another Soldier
* wrongfully possessed/sold a counterfeit substance

17.  An undated Headquarters Ord Form 16 shows the applicant:

* snorted heroin several times per week while on active duty
* tested positive on one occasion
* attended a rehabilitation program during the period 26 April 1976 to 12 August 1976 in an individual out-patient status with urine testing
* was psychologically drug dependent
* was recommended for an administrative discharge
* required transfer to the Veterans Administration hospital prior to completion of his administrative discharge

18.  The applicant's discharge package is not available for review.  His DD Form 214 shows that on 27 September 1976 he was discharged with service characterized as under other than honorable conditions under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

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

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

	a.  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.

	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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered.

2.  The applicant's record is void of the complete facts and circumstances that led to his discharge action.  

3.  In the absence of evidence to the contrary, it must be presumed that his discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of his rights.

4.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

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)                                         AR20130018041



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ABCMR Record of Proceedings (cont)                                         AR20130018041



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