IN THE CASE OF:
BOARD DATE: 2 June 2015
DOCKET NUMBER: AR20140017481
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 (UOTHC) discharge to a general discharge (GD).
2. The applicant states his UOTHC discharge was due to not receiving ample assistance and counseling to overcome his drug and alcohol abuse. All of his nonjudicial punishments were due to drug and alcohol abuse. He needs his discharge upgraded so that he can get the proper treatment and counseling for his drug and alcohol abuse.
3. The applicant provides:
* three DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ))
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
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 9 July 1980. After completing initial entry training, he was awarded military occupational specialty 11B (Infantryman). The highest rank he attained was private first class.
3. His record shows he was counseled on at least five separate occasions between 27 December 1982 and 3 February 1984 for the following offenses:
* being absent from physical training
* failure to follow orders
* failure to make formation
* failure to follow directions
* failure to maintain military appearance
* poor performance
4. The available evidence indicates he received nonjudicial punishment under the provisions of Article 15 of the UCMJ on the following occasions:
* on 2 March 1982, for operating a vehicle while drinking
* on 2 March 1983, for possessing marijuana on 1 January 1983
* on 21 April 1983, for failure to report to appointed place of duty
* on 18 October 1983 for:
* using marijuana on 10 August 1983 and 22 August 1983
* receiving stolen property on or about 1 June through 30 July 1983
* selling stolen property on or about 1 June through 31 July 1983
5. A DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate), dated 11 April 1983 shows he was issued a bar to reenlistment for receipt of multiple nonjudicial punishments and unsatisfactory duty performance despite efforts from his chain of command to assist him.
6. On 20 December 1983, his company commander notified him he had recommended action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, and the least favorable characterization of service or description of service he could received would be UOTHC. He stated the applicant was a constant disciplinary problem. He further stated that counseling, UCMJ, and retraining at the control confinement facility had no effect on his performance and his presence in the unit was conducive to low morale and bad conduct by other members of his unit. He was advised of his rights and acknowledged receipt of the separation notification letter.
9. On 20 December 1983, he consulted with counsel who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights. After consulting with counsel, he elected consideration of his case by a Board of Officers and a personal appearance before the Board.
10. The Board convened on 7 March 1984 and found he was unacceptable for further retention in the military because of a pattern of misconduct. The Board recommended that he be discharged from the service with the issuance of a UOTHC discharge certificate.
11. On 30 March 1984, the separation authority approved his separation under the provisions of Army Regulation 635-200, chapter 14. He directed issuance of a UOTHC discharge certificate.
12. His record is void of documentation or evidence showing he sought help from his chain of command for drug or alcohol abuse or that he voluntarily submitted to a Department of Defense (DOD) or Army rehabilitation program prior to his separation.
13. On 10 April 1984, he was discharged in accordance with the separation authority's decision. He completed 3 years, 9 months, and 2 days of net active service.
14. There is no evidence indicating he submitted a request to the Army Discharge Review Board within its 15-year statute of limitations.
15. 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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. An UOTHC is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.
c. Paragraph 3-7b provides that a GD 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. His comment that he suffered from drug and alcohol problems and now seeks medical assistance is noted; however, the ABCMR does not grant requests for upgrading discharges solely for the purpose of making an applicant eligible for State or Federal benefits.
2. He contends that the he did not receive proper assistance and counseling for his drug and alcohol abuse; however, there is no evidence showing he sought help from his chain of command for drug or alcohol abuse or that he voluntarily enrolled in a Department of Defense (DOD) or Army drug or alcohol rehabilitation program during his enlistment period.
3. The record shows he was properly and equitably discharged in accordance with the applicable regulations, that all requirements of law and regulation were met, and that his rights were fully protected throughout the separation process. The record supports the reason and authority for his discharge.
4. Due to his pattern of misconduct, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Considering all the facts of this case, his UOTHC discharge was appropriate. The available evidence is an insufficient basis upon which to grant 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) AR20140017481
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ABCMR Record of Proceedings (cont) AR20140017481
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