BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20140006113 


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 his under other than honorable conditions discharge be upgraded to an honorable discharge.   

2.  The applicant, in effect, states at the time of his discharge he was also pending a medical discharge but it was overruled by his discharge for misconduct.  He was falsely accused of a crime; therefore, his discharge should be reviewed.  During his time in the military, he did not engage in any criminal behavior.  It is his belief that race was a factor, which in turn led to his discharge. There was never any evidence produced to warrant the court-martial that led to his discharge for misconduct.  Therefore, he is requesting his discharge be upgraded.

3.  The applicant provides no additional evidence.

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 17 November 1977.  On 3 March 1978, he was assigned to the 902nd Engineer Company, 11th Engineer Battalion at Fort Belvoir, VA.  

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on the following dates for the following infractions:

* on 13 June 1978, for wrongfully possessing marijuana
* on 12 July 1978, for failing to go to his appointed place of duty at the prescribed time on nine separate occasions

4.  On 28 September 1978, he was convicted by a special court-martial of one specification each of possessing cocaine, transferring cocaine, and transferring marijuana.  He was sentenced to the forfeiture of $200 per month for 6 months and confinement for 6 months.

5.  He was subsequently confined at Fort George G. Meade, MD, and then the U.S. Army Retraining Brigade (USARB) at Fort Riley, KS.  On 27 October 1979, he was assigned as a trainee to the USARB at Fort Riley.

6.  Between 27 October and 6 December 1978, he was counseled by various members of the USARB for failing to report to his appointed place of duty, disobeying lawful orders, performing in a substandard manner, not being prepared for inspections, and repeatedly displaying a negative attitude. 

7.  On 8 December 1978, he received NJP under the provisions of Article 15, UCMJ, for one specification each of disobeying a lawful order and failing to go to his appointed place of duty. 

8.  On 12 December 1978, 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), paragraph 14-33b, for misconduct - frequent incidents of a discreditable nature.

9.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action, the type of discharge he could receive and its effect on further enlistment, the possible effects of this discharge, and the procedures and rights available to him.  He acknowledged he understood if he were issued an under other than honorable conditions discharge he could expect to encounter considerable prejudice in civilian life and that he could be ineligible for many or all benefits as a veteran under Federal and State laws. 

10.  On 10 January 1979, a board of officers convened to determine if he should be discharged for misconduct.  After reviewing all the evidence, facts of the case, hearing from the applicant, his legal counsel, and his chain of command the board recommended he be discharged for misconduct with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

11.  On 16 January 1979, the separation authority approved his discharge for misconduct and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 19 January 1979, he was discharged accordingly.

12.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b, by reason of misconduct - frequent involvement in incidents of a discreditable nature (separation program designator JKA) with an under other than honorable conditions characterization of service.  He completed 1 year, 1 month, and 4 days of net active service with 29 days of lost time due to being in confinement.

13.  On 1 September 1981, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined his discharge was both proper and equitable.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 abuse of illegal drugs.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

15.  Army Regulation 635-200, 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.

16.  Army Regulation 635-200, 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 evidence of record confirms he demonstrated he could not or would not meet acceptable standards required of enlisted personnel, as evidenced by the NJP he received on three occasions for wrongfully possessing marijuana, disobeying a lawful order, and failing to go to his place of duty on 10 separate occasions.  In addition, he was convicted by a special court-martial of possessing cocaine, transferring cocaine, and transferring marijuana.  Accordingly, his immediate commander initiated separation action against him.

2.  His case was heard by a board of officers and his separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.  

3.  There is no evidence and he has not provided any evidence that shows he was treated more harshly than others because of his race.

4.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20140006113





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140006113



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1