IN THE CASE OF:	  

		BOARD DATE:	  23 June 2015

		DOCKET NUMBER:  AR20140019401 


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, in effect, that his under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect:

* he was discharged from the U.S. Army Retraining Brigade (USARB), Fort Riley, KS because he was in the vicinity of some Soldiers who possessed a small amount of marijuana (less than one gram)
* he enlisted for 3 years and for more than 2 1/2 years he did pretty well
* at the time of his discharge he was young and not smart
* he felt awful afterwards and has grown up considerably since he was separated
* he appeals to the Board to consider his case; it has been very difficult to live with this type of discharge

3.  The applicant provides a copy of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (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 30 July 1980 at age 20.  After completing one station unit training, he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade held was private first class/E-3.

3.  His records show that while stationed in Germany he was convicted by a special court-martial on 12 April 1982 for one specification of disobeying a lawful order, one specification of assault, and one specification of breaking restriction.  His sentence included reduction to private/E-1 and confinement at hard labor for 4 months, with one month of confinement suspended for 6 months.  On or about 21 April 1982, he was reassigned to the USARB.  

4.  His record contains a Fort Riley (FR) Form 1806 (Training Progress Notes), completed on 7 June 1982 by the applicant's team commander, which essentially states:

* the  team commander was recommending the applicant for elimination under the provisions of chapter 14 (Separation for Misconduct), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) due to frequent acts of misconduct
* when the applicant arrived at USARB, he stated his desire to return to duty and get an honorable discharge
* in the 3 weeks he has been under the team commander, his actions have proven otherwise
* in 2 rated weeks of training, he received two unsatisfactory ratings
* during this same timeframe, the applicant committed eight acts of misconduct, six of which involved disobedience of lawful orders
* the final act of misconduct occurred when the applicant was charged with suspected use of marijuana on 29 May 1982; he was pending nonjudicial punishment (NJP) for this incident
* in the 21 months the applicant had been on active duty, he received NJP in October 1981 for disrespect and disobeying a lawful order and in April 1982, he was convicted by a special court-martial
* after his first unsatisfactory rating he indicated he would try harder, but his actions suggested he did not mean what he said
* the applicant was given ample opportunity to succeed, but has demonstrated a lack of commitment and has failed to improve 

5.  On 11 June 1982, the applicant received NJP for one specification of possession of .2 grams of marijuana.  

6.  The applicant’s discharge packet is not available for review by the Board.  However, his DD Form 214 shows:

	a.  He was discharged on 1 July 1982, under the provisions of Army Regulation 635-200, paragraph 14-33b(1) (patterns of misconduct - frequent incidents of discreditable nature with civil or military authorities).  

	b.  The narrative reason for separation states frequent involvement in incidents of a discreditable nature with civil or military authority.  The characterization of service is under other than honorable conditions.  

	c.  He completed a total of 1 year and 10 months of net creditable active military service with 32 days of lost time.

	d.  He was awarded or authorized the:

* Army Service Ribbon
* Marksmanship Qualification Badge with Rifle Bar 
* Marksmanship Qualification Badge with Grenade Bar

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

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.  

   b.  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.


	c.  Chapter 14 (Separation for Misconduct), Section V (Other Acts or Patterns of Misconduct), states members are subject to separation under the provisions of this section for acts of misconduct and patterns of misconduct, to include frequent incidents of discreditable nature with civil or military authorities.  An under other than honorable discharge is normally appropriate for a member separated under this provision.

9.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his under other than honorable discharge be upgraded to honorable, but there was insufficient evidence to support his request.  

2.  The applicant claims, in effect, his discharge and the characterization of his service were unjust because they resulted from one relatively minor incident.  He contends he received NJP just for being in the vicinity of Soldiers who possessed marijuana.  The evidence of record, however, confirms the applicant's separation was actually based on a pattern of misconduct rather than a single event.  

* he received NJP in October 1981 for disrespect and disobedience of a lawful order
* he was convicted by a special court-martial for disobedience of a lawful order, assault, and breaking restriction
* his team commander at USARB noted eight incidents of misconduct while the applicant was under his command
* he received NJP for possession of .2 grams of marijuana

3.  The applicant's discharge packet is not available for review.  Nonetheless, there is no evidence submitted by the applicant or from any other source which shows he was not properly and equitably discharged in accordance with the regulations in effect at the time.  The Board presumes regularity and that those actions taken by the Army are administratively correct.  All evidence indicates the requirements of law and regulations were and the rights of the applicant were fully protected throughout the separation process.  Absent any evidence to the contrary, regularity must be presumed.


4.  Records show the applicant was 20 years of age at the time of his enlistment and over 21 at the time of his offenses.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

5.  Given the foregoing, the evidence shows the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Accordingly, there is insufficient basis upon which to grant the applicant's request for 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)                                         AR20140019401



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ABCMR Record of Proceedings (cont)                                         AR20140019401



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