IN THE CASE OF:	   

		BOARD DATE:	  20 November 2014

		DOCKET NUMBER:  AR20140006961


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 under other than honorable conditions (UOTHC) discharge be upgraded to under honorable conditions.

2.  The applicant states his characterization of service is too harsh.  He was not given an opportunity for recovery or rehabilitation.  He was forced out of the military by a commander who had a grudge against him.  He was under threat at the time by his company commander.  He was not given a psychological evaluation and did not receive dental care.  His discharge completely ruined his reputation and standing in the community.  This led to further problems in life that continue to this day.  He is still unable to obtain treatment for his service-connected mental illness disabilities.  His punishments were for offenses no more serious than drinking a glass of wine and included loss of rank and pay and extra duties designed to break him down psychologically.  He was required to cut grass and weeds that were more than seven feet high using a swing blade for 10 hours without food or water.

3.  The applicant provides no additional documentation.

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.  On 4 October 1984, the applicant enlisted in the Regular Army.  He completed his initial training as an infantryman.

3.  On 4 October 1985, the applicant was advanced to private first class, pay grade E-3.

4.  The applicant’s records contain the following three nonjudicial punishments (NJPs):

	a.  21 August 1986: for wrongful use of marijuana;

	b.  6 November 1986: for failing  to go at the time prescribed to his appointed place of duty; and

	c.  29 April 1987: for wrongful use of marijuana.

5.  On 11 May 1987, at a mental status evaluation, the applicant's behavior was found to be normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory was good.  There was no significant mental illness.  The applicant was mentally responsible.

6.  On 21 May 1987, the applicant’s commander notified him of his intention to recommend him for separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct due to his twice failing a urinalysis testing for drug use.

7.  On 21 May 1987, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected not to make a statement in his own behalf and waived consulting counsel and representation.

8.  On 22 May 1987, the applicant’s commander recommended separation from the service as discussed above.

9.  The appropriate authority approved the recommendation for discharge and directed that the applicant be issued a UOTHC discharge.

10.  Accordingly, on 6 June 1987, the applicant was discharged UOTHC.  He completed 2 years, 8 months and 13 days of creditable active service.

11.  On 13 May 1994, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

12.  Army Regulation 635-200 (Enlisted Personnel Separations) 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 a pattern of misconduct and commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. The misconduct is considered a commission of a serious military or civil offense when the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice (UCMJ).
   
   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 (emphasis added), 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.

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 112a for wrongful use of marijuana is a punitive discharge and 2 years confinement.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded to under honorable conditions because it was too harsh.  He also contends that:

* he was not given an opportunity for recovery or rehabilitation
* his commander had a grudge against him and threatened him
* he was not given a psychological evaluation
* his offenses were no more serious than drinking a glass of wine
* he was required to use a swing blade for 10 hours without food or water
* he is unable to obtain treatment for his service-connected mental illness

2.  The record shows the applicant received NJP twice for using marijuana and once for not going to his place of duty.  This shows a pattern of misconduct and two serious offenses.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The applicant’s argument that his punishment was too harsh is without merit.  Based on the seriousness of his misconduct, the commander could have requested he be tried by court-martial which, if he had been convicted, could have resulted in a punitive discharge and confinement for 2 years.

6.  The applicant contends that he was not given a psychological evaluation; however, his record contains a mental status evaluation that showed he was mentally responsible.

7.  The applicant makes several allegations against his former commander but has not provided any corroborating evidence.

8.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to any upgrade of his discharge.

9.  The applicant's desire to obtain service-connected benefits is not justification for an upgrade of his discharge.


10.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110020309



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ABCMR Record of Proceedings (cont)                                         AR20140006961



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