IN THE CASE OF:    

		BOARD DATE:  19 May 2015	  

		DOCKET NUMBER:  AR20140016696 


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 an upgrade of his under other than honorable conditions discharge. 

2.  The applicant states he was in AZ and he became addicted to drugs.  Due to the drug abuse, he was set for immediate dismissal and he was assigned an under other than honorable conditions characterization of service.  He was able to do his duties and with help he would have continued.  This is why he wants the error corrected.  He had a very bad drug problem that started in 1973.  He feels that since he was doing his duties, maybe someone should have offered to help him.  No one offered to help him with drug rehabilitation and he was just booted out.  He has been struggling for years and lost all his paperwork in storage.  

3.  The applicant did not provide any 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's records show he enlisted in the Regular Army for a period of 3 years on 31 March 1972.  He was trained in and held military occupational specialty (MOS) 36K (Cable Splicer Specialist). 

3.  He served in Korea from 5 November 1972 to 22 November 1973.   He was awarded or authorized the National Defense Service Medal, Armed Forces Expeditionary Medal, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16). 

4.  Following completion of his Korea tour, he was reassigned to Fort Dix, NJ.  While there, on 23 January 1974, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.   

5.  He was honorably discharged on 31 March 1974 for the purpose of immediate reenlistment.  His DD Form 214 (Report of Separation From Active Duty) shows he completed 2 years and 1 day of active service. 

6.  He reenlisted in the Regular Army on 1 April 1974.  He was assigned to the U.S. Army Communications Command, Fort Huachuca, AZ with temporary duty in Taipei, Taiwan. 

7.  While in Taiwan on 16 November 1974, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully possessing and wrongfully using marijuana.   

8.  On 30 January 1975, he accepted NJP for misconduct.  The Article 15 is not available for review; however, his records contain Special Orders Number 6, dated 7 February 1975, confirming his punishment by the commander, Company A, 40th Signal Battalion, Fort Huachuca, AZ.  

9.  On 23 March 1975, he was arrested by civil authorities for possession of heroin and marijuana.  The applicant appeared before and was convicted by a civil court (Superior Court, Bisbee, AZ).   He was sentenced to a $400.00 fine and 1 year probation after being found guilty.  

10.  His arrest report was forwarded to his chain of command for appropriate action and, after review by his commanders, elimination action was recommended under the provisions of paragraph 24a, Section IV, Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion)).

11.  On 1 July 1975, he accepted NJP for misconduct.  The Article 15 is not available for review; however, his records contain Special Orders Number 43, dated 7 February 1975, confirming his punishment by the commander, 40th Signal Battalion, Fort Huachuca, AZ.  

12.  The complete facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his records contain:

a. A DD Form 214 that shows he was discharged from active duty on 
7 August 1975 in accordance with Section VI of Army Regulation 635-200, Separation Program Designator “JKB” (Civil Court Conviction), with an under other than honorable characterization of service.  He completed 1 year, 4 months, and 4 days of active service with 3 days of lost time this period. 

	b.  A memorandum, issued by Headquarters, Fort Huachuca, AZ, on 7 August 1975 advising the applicant of his right to request a separate document explaining the narrative reason for his separation, the authority for his separation, and the reenlistment code.  He circled the word "decline" and signed this memorandum.

13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

14.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 24 of this regulation provided, in pertinent part, that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of one year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service.  If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the major command headquarters to the Adjutant General.  Furthermore, Army Regulation 635-206, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.


15.  Army Regulation 635-200 (Personnel Separations) provides the policies and procedures for the separation of enlisted personnel. 

	a.  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.

	b.  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 applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 7 August 1975 by reason of conviction by civil court with an under other than honorable conditions characterization of service.  

2.  While he contends he was doing his duties and that he should have been offered assistance with his drug problems, there is no available evidence to show he personally took the initiative and referred himself to an Army alcohol and drug treatment program nor is there evidence to show his commander referred him for medical review, counseling or treatment.  His record does show he had numerous violations of the UCMJ based on his use and possession of illegal drugs.  Ultimately, his conviction by civil authorities for drug use is the action that precipitated his commander's decision to initiate separation action. 

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, there is insufficient evidence to grant the applicant the requested relief.








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)                                         AR20140016696



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ABCMR Record of Proceedings (cont)                                         AR20140016696



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