IN THE CASE OF: BOARD DATE: 24 November 2015 DOCKET NUMBER: AR20150005017 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. 2. The applicant states: * he is not homosexual – he never has been and never will be * the only thing he did wrong was test positive for the use of marijuana on one occasion 26 years ago * he is requesting an upgrade of his discharge to enable him to receive medical benefits from the Department of Veterans Affairs 3. The applicant provides a portion of an undated Army medical document. 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 14 July 1986. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions for the following offenses: * 22 March 1988 – for absenting himself without authority from his place of duty on 10 March 1988 * 17 April 1989 – for wrongfully using marijuana at some unknown location prior to 22 March 1989 4. On 18 May 1989, his immediate commander initiated discharge action against him for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14. The memorandum initiating separation action, dated 18 May 1989, lists 14 occasions on which he was counseled, two counts of UCMJ action, and enclosed the following documents with the memorandum: * letter of notification * Soldier's statement acknowledging counseling and election of rights * Report of Mental Status Evaluation * Report of Medical History * Report of Medical Examination 5. The above listed enclosures are not in his available records for review. His immediate commander's packet initiating discharge action for a pattern of misconduct was endorsed by both his battalion and brigade commanders. There is no reference to homosexuality in any documents in his available discharge packet. 6. On 28 June 1989, the Acting Commanding General, 8th Infantry Division (Mechanized), approved the recommended discharge for misconduct under the provisions of Army Regulation 635-200, chapter 14. He directed the issuance of a discharge under other than honorable conditions. 6. On 21 July 1989, he was discharged under other than honorable conditions for misconduct under the provisions of Army Regulation 635-200, chapter 14. His DD Form 214 shows he completed 3 years and 8 days of total active service. 7. He provided what appears to be the third page of a Report of Medical Examination. The document is undated, but appears to emanate from the time of his discharge. Item 73 (Notes) contains the rubber-stamped listing for: "Marijuana," "Drugs," and "Homosexuality." Item 77 states the examinee is qualified for discharge in accordance with chapter 14. His available records contain no other reference to homosexuality. 8. On 7 February 2014, he appealed to the Army Discharge Review Board for an upgrade of his discharge. On 10 March 2014, the Army Discharge Review Board returned his request without action, concluding that his date of discharge was over that board’s 15- year statute of limitations prior to the submission of his application. He was advised to apply to the ABCMR for consideration. 9. 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, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. b. Paragraph 3-7a states 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. d. Chapter 15, in effect at the time, established policy and prescribed procedures for separating members for homosexuality. A member would be separated per this chapter if it was found that the member engaged in, attempted to engage in, or solicited another to engage in a homosexual act unless there were approved further findings that such conduct was a departure from the member's usual behavior, was unlikely to recur, was not accomplished by use of force or coercion, or under the particular circumstances of the case, the member's continued presence in the service was consistent with the interest of the service in proper discipline, good order, and morale. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for upgrade of his discharge under than honorable conditions was carefully considered. 2. He was discharged for patterns of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b. He was not discharged for homosexuality under the provisions of Army Regulation 635-200, chapter 15. 3. The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time. There is no indication of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 4. His records reflect his acceptance of NJP under the UCMJ on two separate occasions. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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 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) AR20150005017 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005017 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1