IN THE CASE OF: BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20150015328 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: 26 January 2017 DOCKET NUMBER: AR20150015328 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: 26 January 2017 DOCKET NUMBER: AR20150015328 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 discharge under other than honorable conditions (UOTHC) to general under honorable conditions. 2. The applicant states: a.  His request is an ongoing effort to improve himself, his self-esteem, and his past when possible. He does not seek any Department of Veterans Affairs benefits for his military service. b.  He voluntarily joined the Army for a 2-year enlistment at the age of 17 and he aspired to become a member of the 82nd Airborne Division. By January 1983, he had earned his jump wings and he was a member of one of the greatest fighting divisions in the world. He was inspired, energetic, and proud. c.  He was from a small Florida town and he was impressionable and gullible. While he was stationed at Fort Bragg, NC, he mingled with the wrong group of Soldiers. Marijuana use was prevalent among his unit members and he became a recreational user. In early 1984, tetrahydrocannabinol (the primary psychoactive ingredient in marijuana) was found in his system during a random urinalysis screening and he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice. He was required to attend on-base counseling, which he successfully completed. He stopped his drug use and he removed himself from the wrong crowd. d.  Around March 1984, a new company commander was assigned to his unit. His new commander took an immediate dislike to him and he made things difficult for him for the next 6 months. e.  He was offered a position on a basketball team and a full scholarship to the University of Alaska by a friend and mentor. He explained his opportunity to his company commander and he was assured his expiration of term of service would be on 10 September 1984. f.  A week prior to his separation date, his unit had a "fun jump" planned and he was invited to lead the jump. Prior to his jump, he noticed his company commander sweating and shaking, so he respectfully reminded him the jump was a "fun jump." His company commander ordered him to the office after the jump and directed his urinalysis testing. A few days later he was told he failed the urinalysis and he would not be discharged as planned. g.  He was never presented the results of the urinalysis and he does not believe the results were positive. His 19-year old brain was having a hard time processing what was happening and how to handle the situation. He left Fort Bragg, NC, on 8 September 1984 and he was in Juneau, AK, the next afternoon. He was back at Fort Bragg, NC, 3 1/2 months later as a military criminal. He was discharged UOTHC with embarrassment and shame. h.  He fears his sons will learn of his discharge and he has a genuine phobia of failure. He has been married for 24 years and raised two honor graduate sons with one in the Army. He was a proud Soldier and his military training and service made him a better man. He would feel as a complete hypocritical failure if his military infractions and discharge status were known. He owns a general contracting business and a marine fabrication business. He has no criminal record and he serves his community. He makes a daily commitment to never be embarrassed or ashamed again. i.  He was recently embarrassed, ashamed, and prejudiced at the Department of Motor Vehicles when he was denied the military hologram stamp on his driver's license due to his military discharge status. 3. The applicant provides: * self-authored letter, dated 4 September 2015 * Congressional correspondence * DD Form 214 (Certificate of Release or Discharge from Active Duty) * discharge package extracts 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 27 October 1982 at nearly 18 years of age. 3. He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, as follows: * on 21 February 1984, for wrongfully and knowingly using marijuana on a military installation on or about 21 October 1983 * on 22 March 1984, for breaking restriction on or about 7 March 1984 * on 7 September 1984, for wrongfully using marijuana on a military installation on or about 15 July 1984 through 25 July 1984 4. On 8 September 1984, his duty status was changed from present for duty to absent without leave (AWOL). 5. On 8 October 1984, his duty status was changed from AWOL to dropped from the rolls. 6. On 4 December 1984, his duty status was changed from dropped from the rolls to present for duty. 7. His complete discharge package is not available for review. He provided extracts that show: a.  On 7 December 1984, charges were preferred against him for being AWOL from on or about 8 September 1984 until on or about 4 December 1984. b.  On 7 December 1984, he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. c.  His chain of command recommended approval of his request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and characterization of his service as UOTHC. d.  His immediate commander stated the applicant was aware of the nature of the interview and consequences of a discharge UOTHC, and he acknowledged or stated the following: * his AWOL of approximately 87 days was due to personal problems * he was scheduled to enroll at the University of Alaska when his request for terminal leave was changed * he departed AWOL because he felt attending college on time was more important than fulfilling his active duty tour e.  The separation authority approved his request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and directed his reduction to the lowest enlisted grade unless he was already serving in that grade. 8. On 24 January 1985, he was discharged accordingly. His DD Form 214 shows he completed 2 years and 2 days of creditable active military service. He had lost time from 8 September 1984 to 26 October 1984 and excess leave after his normal expiration of term of service from 27 October 1974 to 3 December 1984. 9. His DD Form 214 also shows in: * item 25 (Separation Authority) – Army Regulation 635-200, chapter 10 * item 28 (Narrative Reason for Separation) – for the good of the service in lieu of court-martial 10. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 11. He also provided a character-reference letter from D____ and F____ D____, dated 5 June 2015, through Congressional correspondence. The couple state they met him 8 years ago and he is a strong Christian and family man and the phrase "Do what is right, do it right, and do it right now" describes him. He has been responsible for much of the construction work needed for the Citrus County schools. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a.  Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge UOTHC was normally considered appropriate. b.  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.  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. d.  A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is to be discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. 2. 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 ABCMR. 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: 1. His available records do not contain the complete facts and circumstances surrounding his discharge. The evidence of record shows he was AWOL and he used marijuana on two occasions. 2. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 3. In the absence of evidence to the contrary, it is presumed that his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015328 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015328 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2