BOARD DATE:	  1 July 2014

		DOCKET NUMBER:  AR20130018520 


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 upgrade of his discharge under other than honorable conditions (UOTHC) to an honorable discharge (HD).

2.  The applicant states:

   a.  He did not live on base when the space he was required to maintain underwent an inspection.  The inspection found $20.00 worth of hashish under the pillow on his made-up bed.  He met with under-cover officers and was told he had the option of participating in a sting operation or being discharged.  He declined to assist in the sting operation.  No drug test was conducted.

   b.  It has been 30 years since the incident and he has had no drug charges in that time.  He returned to college, obtained three degrees, a bachelors degree and two masters degrees.  
    
   c.  One of his degrees is in substance abuse and he has obtained the highest level of state certification in addiction. 
   
   d.  He has been a stellar community leader and works closely with those who struggle with trauma, drug and alcohol problems, and veterans returning from military service.
   
   e.  He requests to attend a hearing if possible.
   

3.  The applicant provides copies of his résumé, two Masters Degrees certificates, a Bachelors Degree certificate, a Certified Addictions Professional certificate, an EDGE Award for Excellence, a Certificate of Completion for an instructor to teach drug and alcohol prevention, two letters of reference, and his DD Form 214 (Report of Separation from Active Duty). 

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 19 April 1977, completed training, and was awarded military occupational specialty 13B (Cannon Crewman).  Following training he was assigned to duty in Nuremburg, Germany.

3.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on -

* 13 April 1978 for issuing a check for which he had failed to maintain sufficient funds (violation of Article 134, UCMJ)
* 17 August 1978 for disrespectful language toward a noncommissioned officer

4.  On a 23 August 1978, DA Form 4126-R (Bar to Reenlistment Certificate) shows the applicant's unit commander recommended the applicant be barred from reenlisting due to nonpayment of just debts (issuing 5 worthless checks).  The commander stated the applicant continuously displayed apathy in performing his duties.  On two occasions he was disrespectful and disobedient toward noncommissioned officers.  He attempts to shirk all duties and never does more than the absolute minimum.  



5.  Two DA Forms 268 (Report of Suspension of Favorable Actions), dated 17 November 1978 and 23 January 1979, indicate the applicant was pending trial by court-martial for violation of UCMJ Article 128 (Assault) and Article 134 (General Article).  He had a trial date of 15 February 1979.

6.  Documentation of the applicant's request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge), is not of record.  

7.  A DA Form 268, dated 12 April 1979, indicates the applicant would be reduced to the lowest enlisted grade and be discharged with a UOTHC.

8.  The applicant was discharged with a UOTHC on 15 May 1979.  He completed 2 years and 26 days of creditable service with 1 day of lost time.  

9.  There is no indication the applicant applied for review of his discharge by the Army Discharge Review Board within its 15-year statutory limit.

10.  The documents submitted by the applicant in support of his request show:

   a.  WestCare of Florida awarded the applicant their 2005 E.D.G.E. (Excellence, Dedication, Growth, Ethical Behavior) Award for going above and beyond and embodying the WestCare EDGE.

   b.  The applicant completed a Bachelor of Science degree (being ranked as Magna Cum Laude) on 22 December 2005, a Master of Science on 12 May 2007, and a Master of Science on 31 December 2011.

   c.  He was granted a Certified Addictions Professional Certificate on 15 July 2009.

   d.  On 18 August 2013, the applicant completed an instructors certification program in Alcohol, Drug, Accident Prevention Training; Safe Driver Accident Prevention; Aggressive Driver Prevention; Advanced Driver Improvement, 15-25 Youthful Offender; and Senior 55 courses. 

   e.  In her statement of support, Ms. Sxxxxx, a former instructor, describes the applicant as one of the students who changed their lives and the lives of those with whom they work and serve.  He has impacted not only his life but the life of his community.

   f.  In her statement of support, Ms. Wxxxxx, a friend and colleague, describes the applicant as one of the most exceptional people she knows.  He stands out as a person of high standards and sets a positive example.  He possesses strong leadership qualities and motivates others to achieve their goals.  Family and friends are important to him.  He has inspired her with his self dedication.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel:

	a.  Paragraph 3-7a states an HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	b.  Paragraph 3-7b states a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD. 

	c.  Paragraph 3-7c states a UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  

   d.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge UOTHC is normally considered appropriate.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records  (ABCMR)) it provides at:

	a.  Paragraph 2-9 (Burden of proof), 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. 

   b.  Paragraph 2–11 (ABCMR Hearings), applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Formal hearings are granted only when the Board determines that a case is so complex or the records so incomplete that only sworn testimony can provide the necessary information.  The applicant has not demonstrated that his case warrants granting a formal hearing.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The type and character of the discharge is commensurate with his overall record at the time of discharge.

3.  The applicant has not provided and the record does not contain any evidence of the drug-related charge that the applicant avers was the reason for his discharge.  However, the available evidence indicates several instances of misconduct.

4.  While his relatively recent post-service accomplishments are noteworthy they are insufficient reason to grant him an upgrade of the characterization of his service.

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)                                         AR20130018520





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ABCMR Record of Proceedings (cont)                                         AR20130018520



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