IN THE CASE OF

		BOARD DATE:	    31 July 2014

		DOCKET NUMBER:  AR20130021869 


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 his discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states that his discharge was unjust because he threatened to turn in his squad leader for dealing drugs and his squad leader planted drugs in his field jacket and told the commander to search him.

3.  The applicant provides no additional documents with his application.

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 18 September 1979 for a period of 3 years.  He completed his basic training at Fort Dix, NJ and his advanced individual training as a power generation equipment repairer at Fort Belvoir, VA before being transferred to Fort Ord, CA for his first and only assignment.

3.  On 18 March 1980, he accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) from 19 – 22 February 1980.

4.  On 10 September 1980, NJP was imposed against the applicant for the wrongful possession of marijuana.

5.  On 24 November 1981, NJP was imposed against him for the wrongful possession of marijuana.

6.  On 28 January 1982, the applicant’s commander notified him that he was initiating a bar to reenlistment against him due to his disciplinary record.  The applicant declined the opportunity to submit a statement in his own behalf and the bar was approved by the battalion commander.

7.  On 27 May 1982, NJP was imposed against him for being AWOL from 
2 - 6 May 1982.

8.  On 17 June 1982, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14 for misconduct based on frequent involvement in incidents of a discreditable nature with civil or military authorities.  He cited as the basis for his recommendation the applicant’s disciplinary record, his repeated failure to go to his place of duty, his failure to maintain his personal area and appearance, and his failure to respond to repeated counseling sessions and corrective actions.  After consulting with counsel, the applicant waived his rights and declined the opportunity to submit matters in his own behalf.

9.  The appropriate authority (a brigadier general) approved the recommendation for discharge on 8 July 1982 and directed the applicant be furnished an under other than honorable conditions discharge.

10.  On 20 July 1982, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1) for misconduct – frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had served 2 years, 9 months, and 26 days of active service with 7 days of time lost due to AWOL.

11.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

   a.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  The characterization and the narrative reason for discharge were appropriate when considering all of the facts and circumstances in his case.

3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating to warrant relief when considering his involvement in repeated acts of misconduct.  

4.  Therefore, in the absence of evidence showing an error or injustice occurred in his case, there appears to be no basis for granting an honorable or a general 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)                                         AR20130021869





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ABCMR Record of Proceedings (cont)                                         AR20130021869



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