BOARD DATE:	  6 October 2015

		DOCKET NUMBER:  AR20150003497 


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 reconsideration of his earlier request to upgrade his under other than honorable conditions discharge.

2.  The applicant states:

* the documents are false and they disgrace the United States because some of the actions of which he was accused never happened
* he was never drunk and disorderly
* he was only given a urinalysis on two occasions and they were three weeks apart
* his unit never offered him entry into the Army Drug and Alcohol Prevention and Control Program (ADAPCP)
* he tried on his own to enter ADAPCP and this was during and within the three-week timeframe between the urinalysis tests; after he took the test they told him it was too late to self-enroll in ADAPCP
* he never took a urinalysis test with Company C in January or February 1988; this is because he was not in the unit; he was in Company A at the time
* it is not accurate that he was informed of the separation action in February 1988; he was actually told in November 1987
* he tried to be transferred out of his unit of assignment and sought legal counsel; rather than assisting him he was told by the "legal department" to stop pursuing a transfer or he would end up in Leavenworth [presumably referring to the U.S. Army Disciplinary Barracks at Fort Leavenworth, KS]
* he is currently looking for more legal advice
3.  The applicant does not provide additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130008980, on 6 February 2014.

2.  The applicant offers new arguments which constitute new evidence and warrant consideration by the Board.

3.  The applicant's records show he enlisted in the Regular Army on 12 September 1985 and he held military occupational specialty 63J (Quartermaster and Chemical Equipment Repairer). 

4.  His DD Form 2-1 (Personnel Qualification Record - Part II), shows:

	a.  Section VII (Current and Previous Assignments) shows he was assigned to Company C, 705th Support Battalion, Fort Polk, LA from on or about 1 May 1987 to on or about 19 November 1987.  He was assigned to Company A, 705th Support Battalion, Fort Polk, LA from on or about 20 November 1987 until his separation.  

	b.  Item 9 (Awards, Decorations, and Campaigns) reflects he was awarded or authorized the Army Service Ribbon.

	c.  Item 18 (Appointments and Reductions) indicates he attained the rank/grade of specialist four/E-4.

5.  His official military personnel file (OMPF) contains a DA Form 5180-R (Urinalysis Custody and Report Record) which shows the applicant's social security number (SSN) and an annotation next to it identifying a positive reading for tetrahydrocannabinol (THC).  The Julian date of 7286 (which equates to 13 October 1987) is listed as the date the urine specimens were collected.  The submitting unit appears to be Company C, 705th Support Battalion.

6.  On 5 November 1987, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between 13 September 1987 and 13 October 1987.  He is shown as being assigned to Company C, 705th Support Battalion.  The NJP was administered by the Commander, 705th Support Battalion.

	a.  His punishment consisted of reduction in rank/grade to private (PV1)/E-1, forfeiture of pay in the amount of $325 per month for 2 months and 45 days of extra duty.

	b.  He elected to appeal and chose to submit matters in his own behalf (emphasis added).  

	c.  After considering the applicant's appeal, on 13 November 1987, a Judge Advocate General officer opined the proceedings were conducted in accordance with law and regulation.  Additionally, an appropriate punishment had been imposed.

	d.  On 23 November 1987, after considering all matters presented, the applicant's appeal was denied by the acting commander of the 5th Infantry Division (Mechanized) Support Command.  The applicant acknowledged the decision on his appeal on 24 November 1987.

	e.  The punishment was mitigated on 16 December 1987, and was reduced to forfeiture of $275 for 1 months and 22 days of extra duty.

7.  On 19 November 1987, he again accepted NJP under the provisions of 
Article 15 of the UCMJ for being drunk and disorderly.  He is shown as being assigned to Company C, 705th Support Battalion.  The NJP was administered by the Commander, 705th Support Battalion.  

	a.  He acknowledged, after having been afforded the opportunity to consult with counsel, he chose not to demand trial by court-martial but to proceed with the NJP.  He also elected to have a closed hearing wherein he would have a person speak in his behalf.  Matters in defense, mitigation, and/or extenuation were to be presented in person.

	b.  His punishment was extra duty for 45 days (suspended for 90 days)

	c.  He elected not to submit an appeal (emphasis added).

8.  The applicant's OMPF contains a DA Form 2496 (Disposition Form) dated 12 January 1988, subject:  Alcohol and Drug Abuse Prevention and Control Program Enrollment (Army Regulation 600-85 (Personnel General - ADAPCP)).  This form shows his chain of command initiated a document to enroll him in the ADAPCP.  There is no indication in his record that he actually participated in the program, made any progress, or was deemed a rehabilitative failure. 

9.  His OMPF contains another DA Form 5180-R which shows the applicant's SSN with the annotation next to it identifying a positive reading for THC.  The Julian date of 8020 (which equates to 20 January 1988) is listed as the date the applicant's urine specimen was collected.  The submitting unit appears to have been Company A, 705th Support Battalion.  The time between the urinalysis conducted on 13 October 1987 and on 20 January 1988 is 3 months and 8 days (emphasis added).

10.  On 3 February 1988, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana between 20 December 1987 and 20 January 1988.  He is shown as having been assigned to Company A, 705th Support Battalion.  The NJP was administered by the Commander, 705th Support Battalion.  

	a.  He was punished with a forfeiture of pay, which was suspended for 60 days, and extra duty.

	b.  He elected not to file an appeal.

11.  On 16 February 1988, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12 (Section III - Acts or Patterns of Misconduct - Conditions which subject Soldiers to discharge (Minor Disciplinary Infractions, A Pattern of Misconduct, and Commission of a Serious Offense)).  

	a.  The immediate commander cited the applicant's two instances of having positive urinalysis results.  He recommended a general discharge under honorable conditions (emphasis added).  He additionally noted the final decision as to character of service rested with the separation authority.

	b.  The applicant signed an acknowledgement of the commander's proposed action that same date.

12.  In an undated endorsement, addressed to the Commander, 705th Support Battalion, the unit commander forwarded the recommendation for the applicant's separation and stated he (the applicant) was not transferred into his current unit as a result of a rehabilitative transfer.  Additionally, a waiver of the requirement for a rehabilitative transfer was requested as the commander's assessment was rehabilitation would not produce the quality Soldier desired by the U.S. Army.

13.  On 17 February 1988, the Commander, 705th Support Battalion recommended approval of the unit commander's recommendation, to include the recommendation to issue a General Discharge Certificate under honorable conditions (emphasis added).  He additionally waived further counseling and rehabilitative efforts (emphasis added).

14.  On 23 February 1988, the commander, 5th Infantry Division (Mechanized) Support Command (Colonel ELA) signed a 4th endorsement addressed to the Commander, 5th Infantry Division, wherein he recommended approval of the unit commander's proposed separation action.  He was, however, recommending the applicant receive an under other than honorable conditions discharge.

15.  In a 5th endorsement, undated, the Commander, 5th Infantry Division Support Command notified the applicant he was continuing the action to separate him for misconduct and abuse of illegal drugs under the provisions of Army Regulation 635-200, chapter 14, section III, paragraphs b(2) (Conduct prejudicial to Good Order and Discipline) and c(2) (Abuse of Illegal Drugs).  The action was based on the two positive urinalysis test results (shown as having been received on 28 October 1987 and 29 January 1988, respectively) and other unspecified misconduct.  The applicant was told he would be recommended to receive an under other than honorable conditions discharge.

16.  On 28 March 1988, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He waived consideration of his case by an administrative separation board and/or personal appearance before a board.  He initially elected not to submit a personal statement in his own behalf, but later provided one.  He acknowledged that he:

* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* understood he could be ineligible for many or all benefits as a veteran under Federal and State laws in the event he was issued a discharge under other than honorable conditions

17.  In his personal statement, the applicant indicated, in effect:

* he was writing the statement in an effort to change his under other than honorable conditions discharge to a general under honorable conditions (emphasis added)
* he felt he had been punished twice for marijuana and he had completed his punishment
* he had previously self-referred to ADAPCP but it was too late in realizing he had a drug problem
* he additionally contended he should never have received the NJP for being drunk and disorderly; this was because he was not the one who was disorderly
* the Soldier who actually committed the offense had since separated from the Army; he was just the one who received the punishment

18.  On 13 April 1988, following a review for legal sufficiency, the separation authority approved the applicant's discharge.  His service was characterized as being under other than honorable conditions.  The applicant was discharged accordingly on 19 April 1988.  

19.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged for misconduct under the provisions of Army Regulation 635-200, chapter 14, with his service characterized as under other than honorable conditions.  He completed 2 years, 7 months, and 12 days of creditable active military service. 

20.  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 (to include abuse of illegal drugs), and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter (emphasis added).

	b.  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.

	c.  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.

21.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military 
Records (ABCMR).  

	a.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct (emphasis added).  

	b.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence (emphasis added).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests reconsideration of his earlier request to upgrade his under other than honorable conditions discharge.  He bases his request on the contention the documents cited in the initial Record of Proceedings (ROP) were false.  

	a.  He was never drunk and disorderly.

		(1) On 19 November 1987, he accepted NJP for being drunk and disorderly.

		(2) He provides no evidence to support his assertion the charge was false, but, in his personal statement, submitted prior to his discharge, he asserted another Soldier (who had already separated) was actually the one who was disorderly and he, unjustly, received NJP.

		(3) A review of the NJP, however, reveals 

* he was afforded the opportunity to consult with counsel
* he chose not to address the charge in a court-martial where he would have been provided a Judge Advocate General Corps officer to defend his assertion he was being unjustly and falsely accused
* he elected to have a person represent him before the commander who administered the NJP and indicated that, through this person and at the hearing, matters would be presented in his defense
* once the commander who administered the NJP found him guilty of the charge, and unlike the NJP he had just received days earlier 
(5 November 1987), he elected not to appeal the result
* the implication of the above-stated facts is, despite his contention the charge was false, the applicant specifically chose not to pursue what appear to have been ample opportunities to have the charge dismissed and, thus, resolve the injustice

	b.  He was only given a urinalysis on two occasions and they were three weeks apart.

		(1) The evidence of record clearly shows the dates of the urinalyses were 13 October 1987 and 20 January 1988, respectively.

		(2) Based on these dates, more than 3 months elapsed between each urinalysis.

	c.  His unit never offered him entry into the ADAPCP.  He tried on his own to enter ADAPCP and this was during, and within the three-week timeframe between the urinalysis tests; after he took the test they told him it was too late to self-enroll in ADAPCP.

		(1) A DA Form 2496, dated 12 January 1988, subject:  ADAPCP, shows his chain of command initiated a document to enroll him in the ADAPCP; there is no indication, however, he actually participated in the program, made any progress, or was deemed a rehabilitative failure.

		(2) The applicant mentions self-referral in his personal statement, submitted prior to his discharge, but there is no indication he provided proof of those efforts with that personal statement.  

		(3) The Board proceeds from a presumption that what is contained in an OMPF is administratively correct and factually accurate.  The applicant bears the burden of submitting evidence which overcomes these presumptions.  He offers no evidence which might validate the documents in his OMPF are false, nor any verification he self-enrolled in ADAPCP.

	d.  He never took a urinalysis test with Company C in January or February 1988; this is because he was not in the unit; he was in Company A at the time.

		(1) The evidence supports this contention, however the record also confirms the first urinalysis (conducted in October 1987) was administered while he was assigned to Company C, and further, the NJP he received as a result of that urinalysis showed he was assigned to Company C.

		(2) The second urinalysis (conducted in January 1988) was given while he was assigned to Company A; the NJP which resulted from that urinalysis shows he was assigned to Company A.

	e.  It is not accurate that he was informed of the separation action in February 1988; he was actually told in November 1987.

		(1) Although it is possible the applicant was informed discharge action was being considered in November 1987, his OMPF clearly shows formal action did not begin until February 1988.  Additionally, the record contains documents with the applicant's signature showing he affirmed the initiation of separation action in February 1988.

		(2) The possibility of having received earlier notice bears no relevance to making a decision on the applicant's current request.

	f.  He tried to be transferred out of his unit of assignment and sought legal counsel; rather than assisting him he was told to stop pursuing a transfer or he would end up in Leavenworth.

		(1) The applicant offers no evidence to support this assertion, however the fact his efforts to be transferred were not supported would not have affected at the time nor have any potential now for changing the result.

		(2) A rehabilitative transfer was, in fact, considered by his unit commander.  In the commander's view, however, a transfer was not likely to result in changing the applicant's behavior sufficiently to meet Army standards.  As such, a waiver for this transfer was requested.  

		(3) The request for waiver was approved by the battalion commander, suggesting he agreed with the unit commander's assessment.  It is worth noting the battalion commander had administered each of the applicant's NJP actions and, thus, would have been quite familiar with the misconduct which led to the separation action. 

		(4) The applicant, again, had full access to counsel and the opportunity to exercise his rights under the regulation.  The requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

2.  Based upon the foregoing, it is evident his discharge was appropriate and the quality of his service was not consistent with the level of acceptable conduct and behavior expected of Army personnel.  As such, the evidence is insufficient to support granting 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 to amend the decision of the ABCMR set forth in Docket Number AR20130008980, dated 6 February 2014.




      _______ _ 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.



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