IN THE CASE OF:	  

		BOARD DATE:	  21 July 2015

		DOCKET NUMBER:  AR20140019943 


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 under other than honorable conditions discharge be upgraded to a general, under honorable conditions discharge.

2.  The applicant states he was very young and confused [at the time of his service], has been bi-polar his whole life, and he didn't know it.  He had a problem with alcohol and drugs in addition to some mental disabilities.  He was brought up in a dysfunctional family and his very violent home was what drove him to enlist in the Army and go overseas to Panama.  He is disabled now and would like his discharge updated.  

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* orders, dated 22 July 1980
* two DA Forms 2823 (Sworn Statement), dated 15 February 1981 and 5 August 1981
* a form titled Social Work Inprocessing Form, dated 20 June 1981
* a form titled Trainee Interview Summary Sheet, dated 29 June 1981
* two forms titled Behavioral Rating Scale, dated 2 and 9 July 1981
* DA Form 3975 (MP Report), dated 5 August 1981
* Military Police (MP) Investigations - Chemical Field Test Report, dated 5 August 1981
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 5 August 1981
* DD Form 629 (Receipt for Prisoner or Detained Person), dated 5 August 1981
* a form titled Rights Under Article 15, Uniform Code of Military Justice (UCMJ), date 7 August 1981
* DA Form 2496 (Disposition Form), dated 11 August 1981, with a blank Standard Form (SF) 93 (Report of Medical History) and SF 88 (Report of Medical Examination) attached
* Privacy Act Form, undated 

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 6 May 1980 when he was 18 years and 7 months old and he held military occupational specialty 11B (Infantryman).  On 15 August 1980, he was assigned to the Company B, 4th Battalion, 10th Infantry Regiment, Fort Davis, Panama.

3.  On 5 June 1981, he was convicted by a summary court-martial of four specifications of wrongfully possessing marijuana.  He was sentenced to confinement for 30 days and forfeiture of $334 for 1 month.  On 5 June 1981, he was incarcerated at the U.S. Army Confinement Facility (ACF), Panama.

4.  On 20 June 1981, he was assigned to the U.S. Army Retraining Brigade (USARB), Fort Riley, KS.  He provides:

	a.  A Social Work Inprocessing Form, dated 20 June 1981, wherein he stated he entered the service to finish school and for the job experience; his parents were divorced when he was 10 years old and he was torn between living with one without the other; his parents disciplined him with a belt, restrictions, and serious talks; and his parents were strict but he was not mistreated (emphasis added).

	b.  A Behavioral Rating Scale form, dated 2 July 1981, wherein it shows he was rated as marginal for his military skills, and satisfactory for personal growth and development, performance under supervision, and personal behavior.  His overall weekly rating was satisfactory.

	c.  A Behavioral Rating Scale form, dated 9 July 1981, wherein it shows he was rated as “satisfactory” for his military skills, personal growth and development, performance under supervision, and personal behavior.  His overall weekly rating was satisfactory.

5.  On 7 August 1981, he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for one specification of wrongfully possessing marijuana.  The punishment imposed was forfeiture of $90 for 1 month, extra duty for 10 days, and restriction for 10 days.

6.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his DD Form 214 shows he was discharged on 4 September 1981 in the rank of private (PV1)/E-1 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b, by reason of misconduct for frequent incidents of a discreditable nature with civil or military authorities with an under other than honorable conditions characterization of service.  He completed 1 year, 3 months, and 5 days of net active service with 21 days of time lost due to being in confinement.

7.  His record is void of any evidence that shows he was diagnosed with or treated for any mental disorder/condition while serving on active duty.  His record is void of any evidence that shows he requested assistance for dealing with any alcohol or drug problems/issues while serving on active duty.  His record is void of any evidence that shows he was identified with or treated for any alcohol or drug problems/issues while serving on active duty. 

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

9.  The applicant does not provide any evidence that shows he was ever diagnosed with or treated for a mental disorder/condition or alcohol/drug dependency/disorder.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  Upon determination that a member is to be separated with a discharge under other than honorable conditions, the approving authority will direct reduction to the lowest enlisted grade.

11.  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.

12.  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 complete facts and circumstances surrounding his discharge.  However, his record shows he was convicted in June 1981 by a summary court-martial for four specifications of wrongfully possessing marijuana, and just 2 months later he received NJP for wrongfully possessing marijuana.  His DD Form 214 shows he was discharged under other than honorable conditions in the rank of PV1 under the provisions of Army Regulation 635-200, paragraph 14-33b, for misconduct due to frequent incidents of a discreditable nature.

2.  In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations.

3.  His available record does not show and he has not provided any evidence that shows he was diagnosed with any mental disorder/condition while serving on active duty or with any service-related mental disorder/condition after his discharge.  In addition, his record is void of any evidence that shows he was identified as having or treated for any alcohol or drug problems/issues while serving on active duty. 

4.  The applicant contends that his discharge should be upgraded because he was young and confused at the time of his service.  Records show he was almost 20 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

5.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general 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)                                         AR20140019943





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ABCMR Record of Proceedings (cont)                                         AR20140019943



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