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ARMY | BCMR | CY2014 | 20140005927
Original file (20140005927.txt) Auto-classification: Denied

		IN THE CASE OF:  	  

		BOARD DATE:  13 November 2014  	  

		DOCKET NUMBER:  AR20140005927 


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, in effect, his under other than honorable conditions discharge be upgraded. 

2.  The applicant states, in effect, he:

* served to his country honorably
* was promised a good discharge for certain favors
* would like a day in front of a jury or board to hear his facts of what transpired
* was railroaded and kicked out of the Army 

3.  The applicant provides a self-authored statement. 

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.  After having had prior service, the applicant enlisted in the Regular Army on
20 November 1978.  Records show he completed basic combat and advanced individual training and was awarded military occupational specialty 05H.  The highest rank he attained while serving on active duty was sergeant/pay grade
E-5.

3.  On 9 November 1982, the applicant received a DA Form 268 (Report for Suspension of Favorable Personnel Actions) for being under investigation by Japanese authorities for wrongful importation of marijuana.

4.  On 16 May 1983, the applicant was found guilty by the Japanese Court of violation of the Marijuana Control Law.  Records indicate that applicant imported over 300 grams of marijuana into Japan.  The applicant was sentenced to imprisonment at forced labor for a term of one year and six months.

5.  On 17 May 1983, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 14, Section II, Civilian Conviction, due to being convicted by the Japanese court.

6.  The applicant acknowledged he understood his rights pertaining to the notification of separation action.

7.  On 22 March 1984, a board recommended elimination with an under other than honorable conditions discharge.

8. On 19 April 1984, the separation authority approved the recommendation for discharge under the provisions of Section II, chapter 14, Army Regulation 
635-200, with issuance of an Under Other Than Honorable Conditions Discharge Certificate.

9. On 15 November 1984, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was separated for civilian conviction; he completed a total of 5 years, 2 months, and 13 days of creditable active service during the period under review with 286 days of time lost due to civilian confinement.

10.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board’s 15-year statute of limitations.

11.  In a self-authored statement the applicant states, in effect, that:

* he was treated so badly, thrown out like a low rank troublemaker
* although he may have done something really stupid 30 years ago, he does not deserve the discharge he was given
* others got away without punishment
he was a clean cut Soldier and got set up
* his evaluations were impeccable
* he has paid way too long for his actions

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

	a.    Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  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.

	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 contention that his discharge should be upgraded was carefully considered and it was determined there is insufficient evidence to support this contention.

2.  The applicant's record includes evidence which shows he was charged and convicted by civil authorities for the importation of marijuana.  He provides no evidence to show he was set up.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

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

4.  Although the applicant's service prior to his conviction was without incident, it does not mitigate the fact that he was convicted of a felony during his military service.

5.  Based on the foregoing, there is no basis to grant the relief requested.

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)                                         AR20140005927





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ABCMR Record of Proceedings (cont)                                         AR20140005927



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