IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150012339 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: 25 August 2016 DOCKET NUMBER: AR20150012339 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: 25 August 2016 DOCKET NUMBER: AR20150012339 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 general discharge to an honorable discharge. 2. The applicant states, in effect, it has been 31 years since his discharge and he has grown since that time. He was discharged for using marijuana. He has not been involved with drugs since his discharge. He has held several jobs with no complications or adverse situations. He is no longer the troubled Soldier he was. He has learned his lesson. 3. The applicant provides 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 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 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 insufficient bases to waive the statute of limitations. 2. The applicant enlisted in the Regular Army on 18 March 1981 and he held military occupational specialty 63B (Light Wheel Vehicle/Power Generation Mechanic). He was promoted to E-4 on 1 July 1983. 3. His records contain three DA Forms 3975 (Military Police Report) that show on: * 9 November 1983, he was involved in a high speed chase and was arrested for public intoxication * 11 January 1984, he was arrested for disorderly conduct * 24 April 1984, he was arrested for wrongful possession of marijuana 4. On 25 May 1984, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully possessing marijuana on or about 20 April 1984. His punishment consisted of a reduction to E-1, a forfeiture of $298 pay for 2 months, and 45 days of extra duty; he did not appeal the punishment. 5. His records also contain a DA Form 3822 (Report of Mental Status Evaluation), dated 21 June 1984, that shows he was mentally cleared for an administrative separation. 6. On 28 June 1984, he accepted NJP under Article 15, UCMJ, for knowingly and wrongfully using marijuana between 1 and 10 April 1984 and failing to go to his appointed place of duty between 18 and 19 June 1984. His punishment consisted of 30 days of confinement; his appeal was denied on 3 July 1984. 7. On 18 July 1984, the applicant's battery commander notified the applicant of his proposed action to eliminate the applicant from the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel Administrative Separations), chapter 13, based on the applicant's unsatisfactory performance. The applicant was advised of his rights and the commander recommended the issuance of a general discharge. 8. On 19 July 1984, after consulting with counsel, the applicant acknowledged receipt of the proposed separation notification. He acknowledged he understood he could receive a general discharge and the results of the receipt of such a discharge. He waived his rights and elected not to submit a statement in his own behalf. His commander recommended the applicant's discharge on the same date. 9. On 20 July 1984, the separation authority approved the applicant’s discharge and directed the issuance of a general discharge. 10. He was discharged accordingly in pay grade E-1 on 2 August 1984. He completed 3 years, 4 months, and 15 days of net active service. His service was characterized as general (under honorable conditions). 11. There is no evidence he petitioned the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his general discharge. REFERENCES: AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Paragraph 13-2 – Commanders would separate a Soldier for unsatisfactory performance when it was clearly established that the Soldier would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. The seriousness of the circumstances was such that the Soldier’s retention would have an adverse impact on military discipline, good order, and morale. The service of Soldiers separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions (general) as warranted by their military records. b. Paragraph 3-7a – 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. DISCUSSION: 1. The evidence shows the applicant's battery commander initiated action to separate the applicant under the provisions of AR 635-200, chapter 13, for unsatisfactory performance, after his two arrests and Article 15 for wrongfully possessing and using marijuana. The battery commander recommended the applicant receive a general discharge. The applicant acknowledged receipt of the proposed separation action and the separation authority approved his discharge. 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 qualify him for an upgrade of his general discharge. The characterization of his service was commensurate with the reason for discharge in accordance with the governing regulation. 3. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. His service did not rise to the level required for 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) AR20150012339 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012339 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2