IN THE CASE OF:	  

		BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20140012247 


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 (UOTHC) discharge be upgraded to honorable or general, under honorable conditions.

2.  The applicant states he enlisted at age 16 with the intent to make the military a career.  He was assigned to a drug infested environment in Panama in the post-Vietnam era.  One day after he had just come back from taking a shower, his roommate had a large amount of marijuana on the desk when the officer on duty and a sergeant came into his room.  He was unjustly charged along with his roommate for drug possession.  Even though he had been hospitalized and in traction for back problems and a kidney infection he was court-martialed, made to perform hard labor, and was sent to retraining while on profile.  Upon completion of the retraining program, he was recycled due to non-participation in training.  Following this additional injustice he became bitter and angry and told his command he wanted out.  His step-father had served in Vietnam and had passed due to Agent Orange contamination.  

3.  The applicant provides no supporting 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.  With parental consent, the applicant enlisted in the Regular Army on 29 November 1976 at age 17.  He completed training, was awarded military occupational specialty 11B (Light Weapons Infantryman), and he was assigned duty in the Panama Canal Zone.

3.  On 1 January 1978, the applicant was charged with having in his possession, on a military installation, 149.5 grams of marijuana.

4.  On 1 May 1978, in accordance with an agreement to reduce the charge to possession of 74.7 grams, the applicant plead guilty and a summary court-martial found him guilty of possession 74.7 grams of marijuana.  His sentence was a forfeiture of $235.00 pay for 1 month and 30 days in confinement.

5.  The applicant was placed in the Retraining Battalion on 1 May 1978.  The résumé outlining his six weeks in retraining shows he was recycled twice and notes the following reported negative actions – 

* failure of barracks inspection on 8 occasions
* failure of personnel inspection on 5 occasions
* failure of night inspection on 4 occasions
* failure to follow instructions on 5 occasions 
* disobeying a direct order on 2 occasions
* sleeping in class on 2 occasions
* unsatisfactory participation in classroom instructions on 4 occasions
* being absent from bed check on 2 occasions
* be absent without leave on 2 occasions
* counseling for a lack of motivation on 5 occasions 
* counseling for a lack of military bearing and shirking

6.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on – 

* 13 July 1978, for failure to go his appointed place of duty
* 19 July 1978, for failure to go his appointed place of duty
* 10 August 1978, for disobeying a lawful order, failure to go to his appointed place of duty, and being absent from his unit for five hours
7.  On 28 July 1978, the applicant's team commander recommended the applicant be discharged for misconduct with the unit commander concurring on 7 August 1978.

8.  On 21 August 1978, the discharge authority approved the applicant's discharge in accordance with Army Regulation 635-200 (Enlisted Personnel Separations), chapter 13, misconduct - frequent incidents of a discreditable nature with civil or military authorities.  He directed the applicant receive a UOTHC discharge.

9.  On 23 August 1978, the applicant was issued a UOTHC discharge.  He had 1 year, 8 months, and 1 day of creditable service with 24 days of lost time.

10.  There is no indication the applicant applied for review of his discharge by the Army Discharge Review Board within its 15-year statutory limit.

11.  Title 10 U.S. Code (U.S.C.) (Armed Forces), § 912a, states any person subject to this chapter who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces a substance described in subsection (b) shall be punished as a court-martial may direct under Article 112a of the UCMJ.  Substances referred in the law include marijuana.

12.  Title 21 U.S.C. (Food and Drugs), chapter 13 (Drug Abuse Prevention and Control) states it is unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.  Marijuana is listed as a Schedule I controlled substance (a drug or other substance has a high potential for abuse) with limited uses under Schedule III (a drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II and/or has a currently accepted medical use in treatment in the United States).

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	b.  Paragraph 3-7b states that a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  Paragraph 3-7c states that a UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  

   d.  Chapter 13, as then in effect, provided for the separation for unfitness, which included frequent incidents of a discreditable nature, drug abuse, and shirking.  The issuance of a discharge UOTHC is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant was 17 years of age, had satisfactory completed training and had served for approximately a year and a half before any negative incidents were documented.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

2.  The applicant has not provided and the record does not contain any evidence that he was hospitalized for a back condition, and/or was on profile at the time of his court-martial or during his assignment to the Retraining Battalion.  

3.  There is no available evidence to substantiate the applicant's contention that the court-martial was not appropriate, in fact he received an extremely light sentence.  He and his roommate had in their possession 149 grams of 
marijuana.  While the applicant was convicted of possession of only half of that amount, even half of that amount (74 grams) is a felony offense under State and Federal laws as well as a serious violation of the UCMJ.  The fact that he received only a small forfeiture of pay and 30 days in confinement is a very light sentence for the volume of marijuana in his possession.

4.  The applicant was not pulled from the retraining program and recycled due to non-participation in training; he was recycled and then discharged due to his misconduct during the retraining program.

5.  The applicant's court-martial for drug possession and his misconduct during his retraining clearly shows he failed to meet satisfactory standards for upgrading his discharge to general or honorable. 

6.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

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)                                         AR20140012247



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ABCMR Record of Proceedings (cont)                                         AR20140012247



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