RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 November 2007
	DOCKET NUMBER:  AR20070006740 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. James Anderholm

Chairperson

Mr. Lester Echols

Member

Mr. Jeffrey Redmann

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 discharge under other than honorable conditions be upgraded to a discharge under honorable conditions.

2.  The applicant states, in effect, that the charges filed against him were not true.  He believes that he was setup, but that he cannot prove it. 

3.  The applicant did not provide supporting documents with his application.   

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 12 February 1976.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannoneer).  The highest rank he attained while serving on active duty was private first class/pay grade E3.

3.  The applicant's records do not show any significant acts of valor during his military service. 

4.  On 23 April 1976, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for possession of marihuana on or about 21 April 1976, a violation of Article 134, UCMJ.  The punishment imposed was forfeiture of $150.00 per month for two months, 14 days restriction and 14 days extra duty.  

5.  On 22 April 1977, the applicant accepted NJP under Article 15, UCMJ, for leaving his post before being properly relieved on 5 April 1977, a violation of Article 113, UCMJ.  The punishment imposed was 14 days restriction and 
14 days extra duty.  
6.  On 17 June 1977, the applicant accepted NJP under Article 15, UCMJ, for failure to go to his appointed place of duty to wit police call and physical fitness formation on 15 June 1977, a violation of Article 86, UCMJ.  The punishment imposed was forfeiture of $50.00, 14 days restriction and 14 days extra duty.

7.  On 25 January 1979, court-martial charges were preferred against the applicant for violation of Articles 92 and 134 of the UCMJ, specifically for possession of a hypodermic syringe, possession of a hypodermic needle, possession of hashish, possession of heroin, and for selling heroin on four separate occasions. 

8.  On 1 March 1979, 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.

9.  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 of 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.

10.  On 14 March 1979, the separation authority approved the applicant's request for discharge in lieu of trail by court-martial and directed that he receive an under other than honorable conditions discharge.  On 9 April 1979, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) the applicant was issued at the time of his discharge confirms he was discharged and his characterization of service was under other than honorable conditions.  This form confirms that he completed a total of 3 years, 1 month and 28 days of creditable active military service.

11.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 7 May 1981, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.
12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the administrative 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 in lieu of trial by court-martial.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser-included offense therein contained which also authorized the imposition of a punitive discharge.  

13.  Army Regulation 635-200, paragraph 3-7a, provides that 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

14.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he was setup and that the charges that were filed against him were not true. 

2.  There is no evidence or indication that the applicant was setup.  If he believed he was innocent of the charges, the appropriate forum to address his concerns would have been a court-martial.

3.  The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The applicant’s voluntary request for separation under the provisions of Army Regulation 
635-200, Chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

5.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

6.  In view of the charges filed against the applicant for possession of a hypodermic syringe and hypodermic needle, possession of hashish, possession of heroin and for selling heroin on four separate occasions to enlisted Soldiers, the applicant's record of service is not satisfactory.  Therefore, there is no basis to upgrade his discharge to a discharge under honorable conditions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JA  ____  __LE____  __JR ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 Anderholm_______
          CHAIRPERSON




INDEX

CASE ID
AR20070006740
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071101
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.