BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150015127 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 BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150015127 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. BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150015127 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, in effect, an upgrade of his under other than honorable conditions discharge. 2. The applicant states, in effect: * it has been 30 years since his discharge and he has taken several drug rehabilitation courses * he has done what he could to improve his lifestyle * he has learned that drug use is not a good thing 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 15 May 1984 * two training certificates, both dated in 2015 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 23 June 1982. Following initial entry training, on or about 28 November 1982, he was assigned to a unit at Fort Sill, OK. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on two occasions: * 27 January 1983 - two specifications of being disrespectful in language toward a noncommissioned officer (NCO); his punishment included: * reduction from private/E-2 to private/E-1 (PV1) * a forfeiture of $200 pay for 2 months * 30 days of correctional custody, to commence on 31 January 1983 (later remitted after successful completion) * 10 February 1984 - wrongful use of marijuana; his punishment was: * reduction from private first class/E-3 to PV1 * a forfeiture of $298 pay for 2 months * restriction and extra duty for 45 days 4. A summary court-martial convicted him of wrongful possession of marijuana. His sentence was adjudged and the court-martial convening authority approved the sentence on 1 March 1984. He was sentenced to confinement at hard labor for 15 days. 5. On 13 March 1984, his commander notified him, in writing, he was initiating separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Separation for Misconduct), Section III (Acts or Patterns of Misconduct), paragraph 14-12b (A Pattern of Misconduct). 6. On 14 March 1984, he consulted legal counsel. He acknowledged counsel had advised him of the basis for the contemplated separation action, and that it was for a pattern of misconduct. a. Counsel further advised him of the rights available to him, and of the effect of any action taken by him in waiving his rights. He: * declined to have his case considered by an administrative separation board, and waived his right to personally appear before the board * elected not to submit a statement in his own behalf requested consulting counsel and representation by Captain (CPT) MDE, Judge Advocate General (JAG) officer, Defense Counsel * acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * acknowledged he understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * affirmed that he was retaining a copy of this statement b. The applicant's counsel, CPT MDE, confirmed he had advised the applicant of this separation action and its effects, the rights available, and the effect of a waiver of his rights. Counsel affirmed the applicant personally made the choices noted above. 7. On 8 May 1984, the separation authority approved the applicant's discharge and directed the issuance of an under than honorable conditions discharge. The applicant was discharged accordingly on 15 May 1984. 8. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, with a narrative reason showing misconduct - pattern of misconduct. His service was characterized as under other than honorable conditions. He was awarded or authorized: * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) 9. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 10. The applicant provides two certificates, both dated in 2015, reflecting successful completion of programs for substance abuse and anger management/parenting. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14, paragraph 14-12b, in effect at the time, states members are subject to separation under this provision when they have a pattern of misconduct involving: * acts of discreditable involvement with civil or military authorities * conduct which is prejudicial to good order and discipline b. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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. DISCUSSION: 1. The evidence of record shows the applicant displayed a pattern of misconduct. Accordingly, his chain of command initiated separation action against him. 2. He was advised of his rights, consulted with legal counsel (a JAG officer). All requirements of law and regulation appear to have been met and the evidence indicates the rights of the applicant were fully protected throughout the separation process. 3. Based on his record of indiscipline, the applicant's service does not appear to have been consistent with the standards of acceptable conduct and performance of duty for Army personnel associated with a general or 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) AR20150015127 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015127 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2