IN THE CASE OF:
BOARD DATE: 25 November 2014
DOCKET NUMBER: AR20140004078
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 reconsideration of his earlier request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his pay grade as E-5. He also requests an upgrade of his discharge under other than honorable conditions to honorable.
2. The applicant states:
* his DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) stated he should lose one pay grade from E-6
* his DD Form 214 shows his pay grade as E-1
* his discharge was too severe and does not reflect his exemplary service
* he has performed outstanding community service and his one incident during his military service is not indicative of his entire military service
3. The applicant provides:
* enlistment waiver request memorandum, dated 25 April 2007
* DA Form 2627
* DD Form 214
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's request pertaining to correction of his rank was previously considered and denied by the ABCMR on 10 June 2008. The ABCMR requires receipt of reconsideration requests within 1 year of the ABCMR's original decision. His request for reconsideration does not meet the criteria; therefore, the issue pertaining to his rank will not be discussed further in this Record of Proceedings.
3. The applicant enlisted in the Regular Army on 7 May 1979.
4. Records show the applicant tested positive for tetrahydrocannabinol (THC), the active ingredient in marijuana, on 27 June 1985 and 3 July 1985.
5. On 16 July 1985, the applicant's immediate commander notified him of his intent to initiate discharge action against him under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 14-12, based on misconduct due to commission of a serious offense.
6. A DA Form 4856 (General Counseling Form), dated 17 July 1985, shows the applicant was counseled regarding his commander's intent to eliminate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel) for commission of a serious offense or a pattern of misconduct.
7. On 18 July 1985, a bar to reenlistment against the applicant was initiated and approved on the same date.
8. On 19 July 1985, the applicant consulted with legal counsel and was advised of the basis for the contemplated action to separate him for commission of a serious offense under the provisions of Army Regulation 635-200, chapter 14, and its effect, the rights available to him, and the effects of any action taken by him in waiving his rights. He waived consideration of his case and a personal appearance before a board of officers, submitted statements in his own behalf, and waived representation by counsel.
9. On 19 July 1985 in a letter to his division commander, the applicant stated he was being eliminated from the Army without asking him if he were guilty or allowing him to prove his innocence. He is fighting for his career and his future in the Army. He requested an immediate retest (for presence of THC) and was told it would do him no good because he had already been convicted and separation action had already been initiated. He would not and will not do anything to jeopardize his military career. He has given 6 years and 7 months of service to the Army and would like to continue to serve. If eliminated from the service, he requested at least a general discharge.
10. On 19 July 1985, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for wrongful use of marijuana and hashish sometime between 30 March 1985 through 30 April 1985 and sometime between 11 May 1985 through 12 June 1985. Note: His punishment included reduction from pay grade E-6 to E-5.
11. On 14 August 1985, the applicant underwent a mental status evaluation and was found to have the mental capacity to understand and participate in proceedings, to be mentally responsible, and to meet retention standards. He was cleared for any administrative action deemed appropriate by his command.
12. On 18 September 1985, the separation authority approved the applicant's discharge for commission of a serious offense (abuse of illegal drugs) under the provisions of Army Regulation 635-200, paragraph 14-12c. He directed the applicant's reduction to pay grade E-1 and the issuance of an Under Other Than Honorable Conditions Discharge Certificate.
13. On 24 September 1985, he was discharged under other than honorable conditions for misconduct (abuse of illegal drugs) under the provisions of Army Regulation 635-200, paragraph 14-12c. His DD Form 214 shows his pay grade as E-1 effective 18 September 1985. He completed 6 years, 4 months, and 18 days of active service.
14. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 14, in effect at the time, established policy and established procedures for separation for various types of misconduct, which included drug abuse, and provided that individuals identified as drug abusers could be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above had to be processed for separation upon discovery of a drug offense. Individuals in pay grades below E-5 could be also be processed after a first drug offense and had to be processed for separation after a second offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate. When a Soldier was discharged under other than honorable conditions, regulations required reduction to the lowest grade.
b. Paragraph 3-7a states 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 states 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 under other than honorable conditions to honorable was carefully considered.
2. There is no evidence of record and the applicant has not provided any evidence to show he was not properly and equitably discharged in accordance with the regulations in effect at the time. His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.
3. In view of the foregoing there is no basis for granting the request 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 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) AR20140002744
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20140004078
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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