IN THE CASE OF: BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20150014124 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ____x ___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20150014124 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20150014124 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 honorable. 2. The applicant states he completed nearly 8 years of service and was awarded two Army Good Conduct Medals. He was an instructor for the M-1 Abrams course. He was wrongfully accused during an incident and discharged when he argued that he would not accept punishment for something he did not do. This discharge does not represent his Army service. He should not have to pay for an incident he was unjustly accused of for his entire life. His entire enlistment was not considered when given this discharge. 3. The applicant does 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 enlisted in the Regular Army (RA) on 24 September 1976. He held military occupational specialties 19E (M-48/M-60 Armor Crewman) and 19K (M-1 Abrams Armor Crewman). 3. He served in Germany from February 1977 to January 1980. He reenlisted on 14 May 1979. He was advanced to sergeant (SGT)/E-5 in November 1982 and to staff sergeant (SSG)/E-6 in May 1983. 4. He was counseled on numerous occasions by members of his chain of command for various infractions, including missing training, unauthorized absence, missing physical training formation, missing clothing items while in school, not paying his debt, and failing to perform preventive maintenance on a tank. 5. On 27 September 1983, he was stopped by Military Police (MP) after the vehicle he was driving was observed weaving. Upon approaching the vehicle, the MP detected a strong odor of alcohol and administered a field sobriety test. The applicant failed his field sobriety test. He was arrested for driving under the influence (DUI), processed, and released to his unit. 6. On 26 March 1984, he was released from the Basic Noncommissioned Officer (NCO) Course for wrongfully possessing an illegal drug (marijuana). 7. On 3 April 1984, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully possessing marijuana. His punishment consisted of reduction to SGT/E-5, a forfeiture of pay, extra duty and restriction. 8. On 9 April 1984, the applicant’s commander initiated a bar to reenlistment against the applicant citing his wrongful possession of marijuana and receipt of a DUI charge in September 1983. He was provided a copy of this bar, but elected not to submit a statement on his own behalf. The bar was ultimately approved. 9. On 9 April 1984, the applicant’s commander notified him of his intention to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for misconduct. The specific reason is cited as the applicant's abuse of marijuana. 10. The applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on future enlistments or reenlistments, the possible effects of this discharge, and of the procedures/rights that were available to him. He requested consideration of his case by a separation board and/or a personal appearance before a separation board. He also elected not to submit a statement on his own behalf. He acknowledged he understood that: * He could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge 11. Subsequent to his acknowledgement, the applicant’s immediate commander forwarded the separation action against him in accordance with AR 635-200, paragraph 14-12b, a pattern of misconduct. He cited the patterns of misconduct as the applicant's inability to demonstrate conduct conducive to good order and discipline within the military. Despite being counseled for his marginal performance and irresponsible behavior as a NCO, he continued his misconduct and displayed a lack of leadership and professionalism. His duty performance had been marginal and his conduct unacceptable. He was enrolled in the Alcohol and Drug Abuse Prevention and Control Program, Track III. He was removed from the Basic NCO Course, and he also received an Article 15 for wrongful possession of an illegal drug. 12. On 11 April and 16 April 1984, his intermediate commanders recommended approval of the recommendation. His battalion commander opined that the applicant failed to display the leadership and professionalism expected of an NCO. He lacked discipline and failed to conduct himself to standards on and off duty. 13. On 4 May 1984, the applicant submitted a written statement withdrawing his request for a board of officers pursuant to chapter 14 of AR 635-200. 14. On 23 May 1984, the separation authority approved the separation action and ordered the applicant to be reduced to the lowest enlisted grade of E-1 and discharged from the Army under the provisions of paragraph 14-12b, AR 635-200, with a characterization of service as under other than honorable conditions. The applicant was accordingly discharged on 29 May 1984. 15. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 14-12b, due to misconduct - pattern of misconduct, with an under other than honorable conditions characterization of service. He completed 5 years and 16 days of active service and he had 2 years, 7 months, and 20 days of prior active service. The DD Form 214 shows the narrative reason for separation as "Misconduct - Pattern of Misconduct" and the separation code as "JKM." He was awarded or authorized the: * Sharpshooter Marksmanship Qualification Badge with Pistol Bar * Army Service Ribbon * Overseas Service Ribbon * Good Conduct Medal (2nd Award) * NCO Professional Development Ribbon 16. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed 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; convictions by civil authorities, and desertion or absence without leave. Action would be taken to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. 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. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 2. AR 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states the SPD code of JKM is the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, paragraph 14-12b due to misconduct – pattern of misconduct. DISCUSSION: The evidence of record shows, with prior service, the applicant served on active duty from 14 May 1979 through 29 May 1984. a. He displayed a pattern of misconduct ranging from the minor infractions of missing formation, not showing up at training, and not paying his debt, infractions of DUI and wrongfully possession of marijuana. Based on his repeated patterns of misconduct, his chain of command initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. b. On 10 April 1984, based on his years in service, he requested consideration to appear before an administrative separation board. On 4 May 1984, he withdrew his request to have his case heard by the administrative separation board. c. During his service the applicant was promoted to SSG and assigned as an instructor, a position of authority and responsibility. In promoting him, the Army reposed special trust, confidence, and recognized his potential for professional excellence in future assignments. As an SSG, the applicant was in a position of trust and responsibility. He was responsible for the welfare of those assigned under him. With his repeated acts of misconduct, the applicant violated this special trust and confidence. d. The evidence does not indicate that his service met the criteria for a general or an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014124 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014124 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2