IN THE CASE OF: BOARD DATE: 7 October 2014 DOCKET NUMBER: AR20140002860 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 under other than honorable conditions (UOTHC) discharge to a general discharge. 2. The applicant states he joined the Army to serve his country. He would reenlist today, if he could. He made some minor mistakes in the Army. He was young and he was not used to the military life. He regrets the decisions he made. 3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) and a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations. 2. The applicant enlisted in the Regular Army on 17 January 1977. At the time of his enlistment, he was 19 years, 1 month, and 13 days of age. He served in military occupational specialty 11B (light weapons infantryman). 3. On 22 March 1977, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully having in his possession 1 ounce of marijuana on 25 February 1977. 4. He was advanced to pay grade E-2 on 10 April 1977. 5. He accepted NJP under Article 15, UCMJ, on/for: * 22 June 1977 - failing to be at the time prescribed at his appointed place of duty on 16 June 1977 * 3 October 1977 - wrongfully having in his possession 1 ounce of marijuana on 18 September 1977 6. On 7 April 1978, he was convicted by a special court-martial of one specification of stealing U.S. currency ($80.00) from another Soldier on 1 February 1978. His sentence included confinement at hard labor for 90 days, a forfeiture of $250.00 pay for 3 months, and a reduction to pay grade E-1. The sentence was approved and ordered executed on 10 May 1978. 7. On 24 May 1978, he accepted NJP under Article 15, UCMJ, for failing to obey lawful orders issued from two noncommissioned officers on 19 May 1978. 8. On 2 June 1978, the applicant’s company commander recommended the applicant be discharged because of frequent incidents of a discreditable nature under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), paragraph 14-33. He stated the applicant was sent to the Brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with improved attitude and motivation. However, the applicant's actions since arrival precluded accomplishment of the objective as evidenced by the resume of behavior, attitude, and ability. The applicant had demonstrated little desire for returning to duty. In his opinion, the applicant possessed the mental and physical ability necessary to be an effective Soldier, but his present record and his failure to react constructively to the rehabilitation program were indicative that he should not be retained in the service. He advised the applicant of his rights. 9. On 2 June 1978, the applicant’s battalion commander concurred with the recommendation for discharging the applicant. 10. On 2 June 1978, after consulting with counsel, the applicant acknowledged the contemplated separation action. He also acknowledged he could receive a general or an honorable discharge and the results of the receipt of a UOTHC discharge. 11. On 7 June 1978, he elected to have his case heard before a board of officers. 12. On 22 June 1978, a board of officers convened and after consideration of the evidence found the applicant had the ability to perform military duty in a satisfactory manner and his misconduct was evidenced by his conviction by a special court-martial, having received four Article 15s, and numerous discreditable incidents recorded by his cadres at the Retraining Brigade. The board recommended the applicant be discharged with a UOTHC discharge but further recommended suspension of the applicant's discharge and he be returned to training. 13. On 28 June 1978, the acting Staff Judge Advocate found the proceedings to be legally sufficient. 14. On 30 June 1978, the applicant's battalion commander approved the applicant's suspension for seven weeks to allow the applicant to go through a recycle. 15. On 5 July 1978, the special court-martial convening authority ordered the unexecuted portion of the suspended sentence to confinement at hard labor for 90 days suspended until 23 August 1977, unless sooner vacated, remitted without further action. 16. On 2 August 1978, he accepted NJP under Article 15, UCMJ, for being derelict in the performance of his duties (found sleeping on his bunk during normal duty hours) on 22 July 1977. His punishment included a forfeiture of pay for one month (suspended) and 7 days of restriction and extra duty. 17. On 9 August 1978, the suspension of forfeiture of pay was vacated and the unexecuted portion of the punishment ordered duly executed. 18. On 16 August 1978, the separation authority vacated the applicant's suspended UOTHC discharge and ordered it executed. 19. He was discharged accordingly in pay grade E-1 on 18 August 1978. He was credited with completing 1 year, 6 months, and 11 days of net active service with 21 days of time lost. 20. On 7 December 1984, the Army Discharge Review Board denied his request for an upgrade of his discharge. 21. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Paragraph 14-33b - members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for misconduct. A UOTHC discharge was normally considered appropriate. b. Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION AND CONCLUSIONS: 1. The applicant was convicted by a special court-martial, accepted four Article 15s for several military infractions of discipline and twice possessing marijuana. A board of officers recommended suspension of his UOTHC discharge and he be returned to training. During this period, he again accepted an Article 15 for misconduct. The separation authority vacated the applicant's suspended UOTHC discharge, ordered it executed, and he was discharged accordingly. 2. His contention that he was young was carefully considered. He was 19 years, 1 month, and 13 days of age at the time of his enlistment. He was 19 and 20 years of age when his frequent incidents of a discreditable nature with authorities began. There is no evidence he was any less mature than any other Soldier who successfully completed their period of enlistment. 3. He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge. The evidence shows his misconduct diminished the quality of his service below that meriting a general discharge. 4. Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights. He was properly discharged in accordance with pertinent regulations with due process. Therefore, he is not entitled to an upgrade of his 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) AR20140002860 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140002860 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1