RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2007
	DOCKET NUMBER:  AR20060012846 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Gerard W. Schwartz

Acting Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his under other than honorable conditions discharge be upgraded to honorable.  The applicant further requests to personally appear before the Board. 

2.  The applicant states, in effect, that he is now 47 years old and his discharge is still affecting his employability.  He further states that he was young at the time and his discharge continues to haunt him.  The applicant says that, since leaving the service, he has earned an associate degree in accounting, worked as a collector for the Los Angeles Times, worked as an assistant cabinet installer, and is currently working as a security guard.  He has made peace with himself and the church, and has become someone that he can trust.  

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214), Court-Martial Convening Order, and Charge Sheet (DD Form 458). 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 20 January 1981.  The application submitted in this case is dated 
15 August 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  On 24 October 1979, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty 73C1O (Finance Specialist).

4.  On 1 October 1980, court-martial charges were preferred under the Uniform Code of Military Justice for violation of Article 92, failure to obey a lawful general regulation, for unlawful travel between Frankfurt, Germany and Istanbul, Turkey, on 31 May and 20 June 1980; and for violation of Article 134, for wrongful possession of marijuana in hashish form on 16 July and 28 August 1980.
5.  On  16 December 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

7.  On 30 December 1980, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 20 January 1981, the applicant was discharged accordingly.  He had completed a total of 2 years, 2 months, and 27 days of creditable active military service.

8.  On 17 March 1994, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

10.  Under the UCMJ, the maximum punishment allowed for violation of Article 92, for failure to obey a lawful general regulation is a dishonorable discharge and confinement for 2 years; and Article 134, for wrongful possession of marijuana is a dishonorable discharge and confinement for 5 years.




DISCUSSION AND CONCLUSIONS:

1.  The applicant requested a personal appearance before the Board; however, since there is sufficient evidence on record to fully consider this case, a formal hearing is not warranted.  If the applicant is not satisfied with the results of the informal Board hearing, he may request reconsideration and provide new evidence that was not previously considered by the Board.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.  

3.  The type of discharge and reason therefore were appropriate considering all of the facts of the case.

4.  The applicant’s good post-service conduct is noted.  However, it does not sufficiently mitigate his acts of indiscipline during his military service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JEA___  __RSV __  __RSV__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.



__   James E. Anderholm_____
          CHAIRPERSON


INDEX

CASE ID
AR20060012846
SUFFIX

RECON
 
DATE BOARDED
20070306 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
   . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.