IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140012992 


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 general discharge be upgraded to a fully honorable discharge.

2.  The applicant states he was sexually assaulted by a Korean prostitute and did not report it.  He goes on to state that he started smoking marijuana but did not possess any and has been receiving therapy for that incident. 

3.  The applicant provides a two-page statement explaining his application and copies of three DA Forms 2627 (Record of Proceedings under Article 15, UCMJ).

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 27 April 1982 for a period of 3 years and training as a power generation equipment repairer.  He completed his basic training and his advanced individual training before being transferred to Korea on 24 September 1982.  He was advanced to the pay grade of E-3 on 
1 May 1983.

3.  On 29 June 1983, nonjudicial punishment (NJP) under Article 15 of the Uniform of Code of Military Justice (UCMJ) was imposed against him for the wrongful possession of marijuana.  

4.  On 28 July 1983, NJP was imposed against him for the wrongful possession of an Armed Forces Liberty Pass which he knew to be unauthorized and breaking restriction imposed by an NJP on 29 June 1983.

5.  He departed Korea on 21 September 1983 for assignment to Fort Hood, Texas. 

6.  On 24 April 1984, NJP was imposed against him for the wrongful use of marijuana on or about February 1984.

7.  On 29 May 1984, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5 for unsatisfactory performance.  He cited as the basis for his recommendation the applicant’s illegal use of marijuana, poor performance, and indebtedness.

8.  After consulting with defense counsel, the applicant waived his rights and elected to submit a statement in his own behalf in which he stated that his family resided in Dallas, Texas and he was commuting on weekends because his wife was sick and unable to care for his daughter.  He asserted he was a super-troop who had made some mistakes and deserved an honorable discharge for his service.

9.  On 4 June 1984, the appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.

10.  On 13 June 1984, he was discharged under honorable conditions under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance.  He had served 2 years, 1 month, and 17 days of active service.


11.  On 10 September 1984, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that his discharge was too harsh.  After reviewing the facts and circumstances of his case, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request on 28 May 1986.

12.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

13.  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.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights and that the type of discharge directed and the reasons therefore were appropriate considering the available.

2.  The applicant's contentions have been carefully considered; however, they are not supported by the evidence submitted with his application and the evidence of record and are not sufficiently mitigating given his repeated use of marijuana.  

3.  Accordingly, his service does not rise to the level of a fully honorable discharge and there appears to be no basis to grant his request for an upgrade of his 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)                                         AR20140012992



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ABCMR Record of Proceedings (cont)                                         AR20140012992



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