IN THE CASE OF:
BOARD DATE: 24 July 2008
DOCKET NUMBER: AR20080007617
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 discharge.
2. The applicant states, in effect, that he did not know the marijuana was on his person and that he did not make a habit of possessing marijuana. He also states it is a matter of personal pride. When he reveals that he has an undesirable discharge people look at him as if he is a "lowlife."
3. The applicant provides a supplemental address where he wants the Board's results sent, because "At the moment, I'm incarcerated but I will get out in February of next year."
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 applicants 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 applicants 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 on 29 July 1971, completed training and was advanced to pay grade E-3 on 21 November 1971.
3. The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) as follows:
a. on 25 January 1971, for a 7-day period of being absence without leave (AWOL);
b. on 3 April 1972, for possession of marijuana;
c. on 24 April 1972, for dereliction of duty, breaking restriction and for being absence from his appointed place of duty.
4. A Report of Medical Examination (Standard Form 88), dated 5 September 1972 indicates the applicant underwent a separation physical examination in connection with a "Chapter 10" discharge.
5. The details of the separation processing are not contained in the available record. On 15 September 1972, the applicant was separated with an undesirable discharge under the provisions chapter 10, Army regulation 635-200.
6. 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 trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.
7. The Table of Maximum Punishments of the Manual for Courts Martial, as then in effect, shows that a punitive discharge was authorized for any offense of possession of marijuana.
DISCUSSION AND CONCLUSIONS:
1. The regulations governing the Boards operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.
2. There is no available evidence to show that possession of marijuana was the offense for which the applicant requested discharge to avoid trial by court martial. However, if it was, the table of maximum punishments shows that a punitive discharge was authorized and the request for discharge for the good of the service to avoid trial by court-martial was entirely proper.
3. The applicant's assertion that he did not make a habit of possessing marijuana is unconvincing. This would have been his second such offense in about 6 months.
4. There is no available evidence to suggest that the discharge was unduly harsh.
5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ___X____ ___X____ 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.
_______ _ 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.
ABCMR Record of Proceedings (cont) AR20080007617
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ABCMR Record of Proceedings (cont) AR20080007617
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