IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150010129 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 May 2016 DOCKET NUMBER: AR20150010129 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 May 2016 DOCKET NUMBER: AR20150010129 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 discharge to a general discharge. 2. The applicant states at the time of his discharge there was no injustice and he was at fault. He realized that he was not serving his country in the manner that was initially intended. He apologizes for the time invested in his training, etc., that he threw away. He has no cause or excuses for his actions at the time. He can only hope that the awards/commendations he received prior to the time he began to lose sight of why he enlisted are taken into consideration. 3. The applicant provides copies of a Superior Performance Certificate, two Achievement Certificates, Army Commendation Medal Certificate, and his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 the 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. 2. The applicant enlisted in the Regular Army on 24 September 1980, for 3 years. He completed training and was awarded military occupational specialty 11B (Infantryman). 3. He provides copies of his Superior Performance Certificate for basic training and two Achievement Certificates, dated 10 February and 17 April 1981. 4. He was promoted to pay grade E-3 on 1 June 1981. 5. His record contains: a. A DA Form 3975 (Military Police (MP) Report), dated 24 June 1981, showing an investigation revealed he was wrongfully in possession of marijuana in his barracks room on 21 May 1981. He was apprehended and subsequently released to his unit. b. A DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 11 August 1981, that shows he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully possessing marijuana on 21 May 1981. His punishment included a suspended reduction to pay grade E-2 and forfeiture of pay. c. A DA Form 3975, dated 1 September 1981, showing an investigation revealed he wrongfully possessed marijuana on 1 September 1981. He was apprehended and subsequently released to his unit. d. A DA Form 4833, dated 1 October 1981, showing he received NJP under Article 15, UCMJ, for wrongfully possessing marijuana on 1 September 1981. His punishment consisted of 14 days of extra duty. 6. He also provides a copy of an Army Commendation Medal Certificate, dated 13 October 1981. 7. He was reported: * absent without leave (AWOL) on 15 June 1982 and returned to military control on 17 June 1982 * AWOL on 6 July 1982 and returned to military control on 22 July 1982 * AWOL on 5 October 1982 and returned to military control on 12 October 1982 * AWOL on 21 January 1983 and returned to military control on 24 January 1983 8. On 14 February 1983, he received NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on 20 January 1983 and being AWOL on 21 January 1983. 9. On 23 February 1983, he underwent a mental status evaluation. His behavior was found to be normal, he was fully alert and oriented, his mood was unremarkable, and his thinking process was clear and his thought content was normal. The examining psychiatrist diagnosed him with an adjustment disorder with depressed mood, resolved. The psychiatrist stated the applicant had a character structure that rendered him unable to cope well in the military. He had no mental disorder which warranted disposition through medical channels. The applicant was cleared for any administrative action deemed appropriate by his command to include a chapter 10 discharge. 10. His record is void of the complete facts and circumstances surrounding his discharge; however, his records contain: a. A Request for Discharge for the Good of the Service memorandum, dated 9 March 1983, in which after consulting with counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial. He acknowledged the consequences of an under other than honorable conditions discharge as well as the maximum punishment he could receive if found guilty of the charges by a court-martial to include a bad conduct or dishonorable discharge. He waived his rights and elected not to submit a statement in his own behalf. b. Two Discharge for the Good of the Service memoranda, dated 10 March 1983, and a DA Form 2496 (Disposition Form), dated 16 March 1983, in which his chain of command and staff judge advocate recommended approval of his request. c. A Request for Discharge for the Good of the Service memorandum, dated 16 March 1983, in which the separation authority approved his request and directed the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1. 11. On 24 March 1983 he was discharged accordingly. He was credited with completing 2 years, 5 months, and 1 day of active service and 29 days of time lost. His service was characterized as under other than honorable conditions. 12. On 17 May 1985, the Army Discharge Review Board denied his request for an upgrade of his discharge. REFERENCES: Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. a. Chapter 10 stated a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for a 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 include the individual’s admission of guilt. The Soldier was required to sign the request indicating he understood he could receive an under other than honorable conditions discharge and the results of the issuance of such a discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. Paragraph 3-7a states an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. Paragraph 3-7b states 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: 1. The applicant's record is void of the complete facts and circumstances surrounding his 1983 discharge. However, the available evidence shows during his period of service he was punished under Article 15 for being AWOL and twice for wrongfully possessing marijuana. He also had accrued 29 days of time lost. It appears after charges were preferred against him after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army. He acknowledged that he could be furnished an under other than honorable conditions discharge. The separation authority approved his request and he was discharged accordingly. 2. He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would warrant an upgrade of his discharge. The characterization of his discharge was commensurate with the reason for discharge in accordance with the governing regulation in effect at the time. 3. Without evidence to the contrary, it must be presumed his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize 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) AR20150010129 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010129 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2