RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2008
	DOCKET NUMBER:  AR20080000662 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. Rowland C. Heflin

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 that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

2.  The applicant states he did wrong by selling weed.  He deserves a second chance in life.  He was a good Soldier, but he was young and dumb.  His father was always on him to get his discharge upgraded.  His father has now passed away.  He would like the upgrade so his father can rest in peace.

3.  The applicant provides a letter of support from his mother.

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 was born on 29 July 1960.  He enlisted in the Regular Army on 12 May 1980.  He completed basic training and advanced individual training and was awarded military occupational specialty 19E (M48-M60 Armor Crewman).

3.  On 18 August 1981, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) for a period of 7 days.

4.  On 20 January 1982, court-martial charges were preferred against the applicant charging him with one specification of wrongfully possessing three plastic bags containing marijuana; one specification of wrongfully transferring three plastic bags containing marijuana to an undercover servicemember; and one specification of wrongfully selling three plastic bags containing marijuana to an undercover servicemember.

5.  After consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service.  He was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted no statement in his own behalf.

6.  On 10 February 1982, the applicant’s company commander recommended approval of the applicant’s request and recommended he receive a general under honorable conditions discharge.  The company commander noted that the applicant had been an above-average Soldier who was a great asset to his unit and whose overall service had been excellent.

7.  On 10 February 1982, the applicant’s battalion commander recommended approval of the applicant’s request and recommended he receive a discharge UOTHC.  The battalion commander noted that he considered the applicant’s manner of performance; however, the seriousness of the charge warranted a recommendation of UOTHC.

8.  On 12 February 1982, the appropriate authority approved the applicant’s request and directed he receive a discharge UOTHC.

9.  On 19 February 1982, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, conduct triable by court-martial, with a discharge UOTHC.  He had completed 1 year and 9 months of creditable active service.  His DD Form      214 shows he had lost time from 8 through 15 August 1981 (8 days).

10.  Army Regulation 635-200 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 trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.  

11.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

12.  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’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by  court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The company commander, when recommending that the applicant be discharged with a general under honorable conditions discharge, noted that the applicant had been an above-average Soldier who was a great asset to his unit and whose overall service had been excellent.  However, the applicant had previously accepted nonjudicial punishment for being AWOL for 7 (or 8) days.  The evidence of record does not confirm that his overall service was excellent or that he had been a good Soldier.

3.  Given the applicant’s record of misconduct during his short period of service, it appears that the characterization of his service as UOTHC was and still is appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mdm___  __jcr___  __rch___  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.




__Mark D. Manning____
          CHAIRPERSON




INDEX

CASE ID
AR20080000662
SUFFIX

RECON

DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
1982/02/19
DISCHARGE AUTHORITY
AR 635-200, ch 10 
DISCHARGE REASON
A70.00
BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.
110.00
2.

3.

4.

5.

6.