IN THE CASE OF:	   

		BOARD DATE:	  28 October 2014

		DOCKET NUMBER:  AR20140004563 


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 honorable conditions (general) character of service to honorable.

2.  The applicant states he would like his character of service upgraded to honorable.

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty) for the period ending on 30 May 1977
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 27 May 1980
* DA Form 2-1 (Personnel Qualification Record – Part II)
* DD Form 214 for the period ending on 6 April 1994

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 initially enlisted in the Regular Army on 29 June 1974 and was honorably discharged for immediate reenlistment on 30 May 1977.  He reenlisted on 31 May 1977 and was honorably released from active duty on 27 May 1980 and transferred to the U.S. Army Reserve.  After a short break in service, he enlisted in the Regular Army again, on 17 November 1981. 

3.  His record contains a DA Form 3975, dated 8 February 1984, showing the Military Police (MPs) responded to a domestic disturbance.  The report indicates that he and his spouse were engaging in a verbal altercation when he struck her in the forehead and nose with a closed fist.  The applicant was charged with simple assault and battery.  Additionally, his record contains a DA Form 3975-1 (Commanders Report of Disciplinary Action) showing his commander verbally reprimanded him for this incident.  

4.  His record contains a DA Form 3975, dated 10 November 1989, showing he and his spouse were engaging in a verbal altercation when he threw her on the bed and struck her in the face with an open hand when she attempted to get up.  She attempted to contact the MPs at this time.  The applicant prevented her from contacting the MPs and she fled the scene and contacted the MPs from a neighbor's home.  The applicant was later apprehended and admitted to the assault.  The applicant was charged with assault consummated by battery.  Additionally, his record contains a DA Form 3975-1 showing his commander reprimanded him for this incident verbally and in writing.  

5.  His record contains a final U.S. Army Criminal Investigation Command (CID) report of investigation, dated 10 July 1990, which shows the applicant and another Soldier (Jxxxxxx) jointly smoked a cigarette, provided by the applicant, which contained marijuana.  In November 1989, the applicant displayed four pieces of marijuana (hashish) to Jxxxxxx who purchased one piece of the marijuana from the applicant for $25.00.  In March of April 1990, the applicant sold one piece of marijuana (hashish) to Jxxxxxx for $30.00.  CID charged the applicant/titled him for wrongful distribution, possession, and use of marijuana (hashish).  The evidence was based on the statements and urinalysis from the Soldier Jxxxxxx.  Additionally, his record contains a DA Form 3975-1 showing his commander did not take any disciplinary actions against the applicant.  The commander stated there was "No evidence to back up allegations against [the] subject… [and stated that CID had] insufficient evidence" to justify recommending the commander take disciplinary action.

6.  His record contains two DA Forms 3975, dated 31 October 1991, showing:

	a.  The applicant was pulled over by MPs for drunk driving at 1355 hours.  He was administered two breathalyzer tests which resulted in readings of 1.61 and 1.71 percent (%).  Additionally, his record contains a DA Form 2627 (Record of Proceedings under Article 15, UCMJ), showing he accepted NJP on 16 January 1992 for having a blood alcohol content of 1.61% while on duty, operating a military vehicle while drunk, and being found drunk on duty as an operator of a military vehicle.

	b.  The MPs were notified, at 2320 hours, that the applicant and his spouse were engaging in a verbal altercation that turned physical when the applicant grabbed his wife and she scratched him below the left eye.  The applicant then struck his wife across the cheek twice with an open hand.  The applicant was later apprehended and admitted to the assault.  The applicant was charged with assault consummated by battery.  The report further indicated applicant’s spouse had acted in self-defense when she scratched him.  Additionally, his record contains a DA Form 3975-1 showing his commander administered NJP under the provisions of Article 15 of the UCMJ.  

7.  His record contains a final CID report of investigation, dated 25 January 1993, which shows a CID investigation and forensic handwriting experts revealed that on 30 November 1991, the applicant went to Merchant’s Bank and forged the signature of Mr. FTB on a savings account withdrawal slip and withdrew $8,000.00 from Mr. FTB savings account.  As such he stole $8,000.00 worth of property from Merchant’s Bank.  On 14 January 1993, the CID investigation was coordinated with trial counsel who opined that there was sufficient evidence to prosecute the applicant for the offenses of larceny, forgery, and conspiracy.  The applicant was titled for this offense but not formally charged.

8.  His record contains a memorandum for record, issued by his commander on 
4 August 1993, which shows his commander had counseled him in April 1993 because he was not complying with family support requirements.  The applicant took immediate action by increasing his wife’s allotment from $288.00 to $406.00.  However, in August 1993, his commander was contacted by a legal assistance division and was informed the applicant stopped the allotment.  The applicant’s commander ordered the applicant to provide him with a copy of a money order and his leave and earnings statement within 48 hours to show he had provided the required support of $406.00.  The applicant was also advised that his failure to comply could result in disciplinary action.
9.  His record contains a DA Form 4856 (General Counseling Form), dated 
9 September 1993, showing the applicant’s first sergeant (1SG) counseled him for his continual failure to pay his just debts.

10.  His record contains a DA Form 5180-R, dated 26 October 1993, which shows the applicant’s urine specimen tested positive for THC.

11.  His record contains a DA Form 4856, dated 27 October 1993, showing his company commander counseled him because his urine specimen tested positive for marijuana.  His commander informed him he was being command referred to 
the Alcohol and Drug Abuse Prevention and Control Program (ADAPC).  The applicant was informed if he failed to rehabilitate and continued with his pattern of misconduct he would be recommended for discharge.  He was also informed that his commander was recommending that the battalion commander issue him NJP under the provisions of Article 15 of the UCMJ.

12.  His record contains a DA Form 2627, dated 14 December 1993, showing the battalion commander imposed a field grade Article 15 and the applicant accepted the NJP for wrongful use of marijuana.

13.  On January 1994, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 for misconduct-abuse of illegal drugs for testing positive for THC on a random urinalysis.

14.  His record contains a Report of Mental Status Evaluation, dated 5 January 1994, showing he was psychiatrically cleared for any administrative actions deemed necessary by his command.  

15.  On 11 January 1994, he consulted with legal counsel and he was advised of the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He acknowledged that he understood he could encounter substantial prejudice in civilian life if a general discharge was issued to him.  He requested counsel and a personal appearance before an administrative separation board, and indicated he provided a personal statement in his own behalf.  His statement showed he disagreed with the separation proceedings.

16.  On 25 January 1994, his commander formally recommended his separation under the provisions of Army Regulation 635-200, chapter 14 for misconduct-

abuse of illegal drugs.  His commander recommended the applicant’s case be heard by administrative elimination board and that rehabilitative requirements be waived.  His commander cited the various derogatory incidents that occurred during all periods of his military service.  In addition to the derogatory data previously mentioned in this case, his commander also cited the following incidents:

* in March 1975, he received NJP under the provisions of Article 15 of the UCMJ for wrongful possession of marijuana
* in June 1979, he was charged with assault

17.  His record contains a DA Form 1574 (Report of Proceedings by Investigation Officer/Board of Officers), showing a board of officers convened on 22 February 1994.  The board found the allegation of commission of a serious offense-abuse of illegal drugs was supported by a preponderance of evidence.  The board recommended the applicant be eliminated from military service and issued a general discharge.  The board's recommendations, along with the recommendations of his chain of command were forwarded to the U.S. Total Army Personnel Command (TAPC) to make a final determination as to the final disposition of the applicant’s case.

18.  TAPC issued a memorandum, dated 24 March 1994, wherein the Chief, Enlisted Separations and Appeals Branch, stated the recommendation to discharge the applicant for commission of a serious offense had been approved. TAPC directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c and issued a General Discharge Certificate.

19.  His DD Form 214 shows he was discharged, on 6 April 1994, under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of "Misconduct" with a characterization of service of general under honorable conditions.  This form further confirms he completed 12 years, 4 months, and 20 days of net active service this period.

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

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

	a.  Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration term of service.  First-time offenders, grades sergeant (E-5) - sergeant major (E-9) will be processed for separation upon discovery of a drug offense.  "Processed for separation" means that separation action will be initiated and processed through the chain of command to the separation authority for appropriate action.  The immediate and intermediate commanders will recommend separation or retention.  Recommendation will be made as to the characterization of service.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant tested positive for the use of marijuana.  He knowingly and wrongfully made the choice to use an illegal drug.  Testing positive for illegal drug use is a punishable offense.

2.  Based on his long record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Although an under other than honorable conditions discharge was normally considered appropriate for the offense committed, his chain of command and separation authority were extremely generous in recommending and directing the issuance of a general discharge.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable 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)                                         AR20140004563





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ABCMR Record of Proceedings (cont)                                         AR20140004563



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