IN THE CASE OF:	   

		BOARD DATE:	  21 April 2015

		DOCKET NUMBER:  AR20140015330 


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 general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, that he did not have proper representation during his field grade Article 15 proceedings and he was told that he was not allowed to present evidence in his defense.  He contends that his age and inexperience with legal matters prevented him from receiving a fair hearing.

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.  On 13 March 1984, the applicant enlisted in the Regular Army.  He was 
17 years of age.  He completed his initial entry training and was awarded military occupational specialty 11H (heavy anti-armor weapons infantryman).

3.  His record contains a memorandum, subject:  Summary of Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Rehabilitation Efforts, dated 4 November 1985.  This document shows:

* he was command referred to the ADAPCP on 23 August 1985
* due to his failure to comply with treatment plans/goals and his lack of motivation to discontinue his use/abuse of illicit drugs, he was determined to be a rehabilitative failure
* he was recommended for elimination from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 9 (drug rehabilitation failure)

4.  A DA Form 3997 (Military Police Desk Blotter), dated 5 February 1986, shows he was charged by civil authorities in Renton, WA for the following offenses:

* operating a motorcycle without eye protection
* no valid driver's license
* wrongful possession of a controlled substance (marijuana)
* warrant arrest - breach of peace

5.  On 25 February 1986, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for the wrongful possession of some amount of marijuana.  He indicated he had been afforded the opportunity to consult with counsel and he initialed statements indicating he had elected not to demand trial by court-martial.  In the Article 15 proceedings:

* he requested the hearing be closed
* he did not have a person speak on his behalf
* he did not present matters in defense, mitigation, and or extenuation
* punishment included reduction from private first class (PFC)/E-3 to private (PV1)/E-1
* he did not wish to appeal his punishment

6.  On 13 March 1986, he was notified by his commander that action was being taken to separate him under the provisions of Army Regulation 635-200, chapter 14, for patterns of misconduct with a recommendation for a General Discharge Certificate.  The reasons cited were his discreditable involvement with civil/military authorities, conduct prejudicial to good order and discipline, and failure to respond to formal counseling.  He was also declared an ADAPCP failure on 30 October 1985 and then found in possession of marijuana in February 1986. 

7.  On 17 March 1986, the applicant consulted with counsel who advised him of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.  He waived his rights and he elected not to submit a statement in his own behalf.

8.  On 19 March 1986, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, patterns of misconduct, and directed the issuance of a general discharge. 

9.  On 26 March 1986, the applicant was accordingly discharged.  He had completed a total of 2 years, and 10 days of creditable active duty service.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  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 included acts or patterns of misconduct.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.

	b.  Paragraph 3-7a states 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.  Records show that the applicant was approximately 19 years of age at the time of his offenses.  However, there is no evidence indicating the applicant was any less mature than other Soldiers of the same age who had successfully completed military service.

2.  His contention that he was not properly represented during his Article 15 proceeding is not supported by the available evidence which shows he had the opportunity to consult with counsel and made a decision to accept his NJP without submitting evidence on his behalf or appealing his punishment.

3.  His record of misconduct included ADAPCP failure, being found in possession of marijuana, and numerous civil offenses.  This record of indiscipline is a significant breach of the conduct expected of a Soldier; therefore, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  The record shows that his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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

6.  In view of the foregoing, there is no basis for granting his request to upgrade 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)                                         AR20140015330



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ABCMR Record of Proceedings (cont)                                         AR20140015330



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